Court’s Decision
The Bombay High Court allowed the writ petition filed by three BMC Assistant Law Officers Grade-II working with the Municipal Corporation and declared that they are regular Assistant Law Officers Grade-II from their respective dates of appointment. The Court directed the Corporation to grant them all service benefits available to permanent employees and to consider them for promotion to the post of Assistant Law Officer as and when the occasion arises.
The Court rejected the Corporation’s stand that the petitioners’ appointments could continue to be treated as temporary or provisional merely because their appointment orders stated that the appointments were subject to the outcome of a pending Special Leave Petition before the Supreme Court.
Facts
The petitioners were appointed as Assistant Law Officers Grade-II in the Municipal Corporation after a recruitment process. The appointment orders contained a clause stating that their appointments would be subject to the decision of the Supreme Court in a pending Special Leave Petition.
The background of the dispute arose from the legal issue concerning whether law officers employed by the Corporation could continue appearing in courts on behalf of their employer, in view of amendments to the Bar Council rules relating to advocates accepting full-time salaried employment.
A Full Bench of the Bombay High Court had earlier upheld the amendment deleting the exemption that allowed certain law officers to appear in courts despite being employed. The Corporation challenged that decision before the Supreme Court, and the Supreme Court stayed the operation of the Full Bench judgment. Since the SLP remained pending, the Corporation treated the petitioners’ appointments as temporary or provisional and did not consider them for promotion.
The petitioners contended that they had completed seven years of unblemished service, had completed probation, and were appointed through a proper recruitment process. Therefore, they claimed that they could not be denied regular status and promotional consideration indefinitely merely because the Supreme Court proceedings were still pending.
Issues
The primary issues before the Court were:
- Whether the appointment of Assistant Law Officers Grade-II could be treated as provisional merely because a Special Leave Petition was pending before the Supreme Court.
- Whether employees who had completed probation and served for several years could be denied regular status and promotion only on the basis of a clause in the appointment order.
- Whether the petitioners were entitled to be considered for promotion to the post of Assistant Law Officer.
Petitioners’ Arguments
The petitioners argued that their appointments were not illegal or irregular. They were appointed after a public advertisement, a proper selection process, and issuance of appointment orders. They had completed their probationary period and had rendered seven years of service.
They submitted that the mere pendency of the Supreme Court matter could not be used indefinitely to deny them regular status, service benefits, and promotional consideration. Their case was that the appointment clause referring to the pending SLP could not override settled principles of service jurisprudence once they had continued in service for several years and had not been discontinued during probation.
They further submitted that Assistant Law Officers do not only appear in courts. The legal department also performs several other functions, including preparation of agreements, leases, conveyances, memoranda of understanding, title investigation, legal opinions and other legal work connected with municipal administration. Therefore, even if the Supreme Court ultimately upheld the view that full-time employed law officers could not appear in courts, the petitioners could still be assigned other legal duties.
Respondent’s Arguments
The Corporation opposed the petition and contended that the petitioners’ appointments were expressly temporary and subject to the outcome of the Special Leave Petition pending before the Supreme Court. According to the Corporation, the petitioners had accepted the appointment conditions and had also given undertakings that they would not claim equities and would abide by the Supreme Court’s decision.
The Corporation further argued that once the petitioners accepted the conditional appointment, they could not later seek a writ of mandamus claiming regular status. It was also argued that there was no accrued right in favour of the petitioners and no corresponding duty on the Corporation to treat them as permanent employees.
The Corporation also pointed out that a subsequent advertisement was issued in 2023 for direct recruitment to the post of Assistant Law Officer, and the petitioners had applied but could not clear the examination. According to the Corporation, only after being unsuccessful in that process did they file the present petition seeking promotional benefits.
Analysis of the Law
The Court examined the appointment orders and found that most of the clauses were similar to ordinary appointment orders issued to employees who are intended to be appointed permanently upon fulfilment of the prescribed terms. The appointment orders referred to service rules, conduct rules, disciplinary rules, probation, computer qualification requirements, entitlement to holidays and benefits, deputation to other offices or departments, and applicability of the defined contribution pension scheme.
The Court observed that the only clause suggesting temporary status was the clause making the appointment subject to the outcome of the Supreme Court proceedings. However, the Court found that this clause could not be read in isolation or used indefinitely to deny regular status after the petitioners had completed probation and continued in service for several years.
The Court also considered the principles governing regularisation and confirmation of employees. It noted that illegal appointments cannot be regularised, but irregular appointments may be regularised depending on the facts. In the present case, the Court found that the appointments were neither illegal nor clandestine. A public advertisement had been issued, candidates had competed with each other, the recruitment process was transparent, and the petitioners were selected through examination or interview.
Precedent / Legal Framework Considered
The Court considered the effect of Rule 49 of the Bar Council of India Rules and the relevant rules of the Bar Council of Maharashtra and Goa. These provisions regulate whether an advocate can accept full-time salaried employment and continue to practise as an advocate.
The Court noted that earlier, certain law officers employed by the Central Government, State Government or public bodies were exempted and could appear in courts on behalf of their employers. However, amendments made in 2001 deleted this exemption. A similar amendment was made by the Bar Council of Maharashtra and Goa in 2002. This led to the earlier Full Bench decision of the Bombay High Court, which upheld the deletion of the exemption. That decision was challenged by the Corporation before the Supreme Court, where the matter remained pending and the operation of the Full Bench judgment had been stayed.
However, the Court held that the pendency of that SLP could not automatically render the petitioners temporary or disentitle them from regular service benefits, especially when their appointments were otherwise made through a proper recruitment process.
Court’s Reasoning
The Court held that the petitioners had completed the probation period of three years and had not been discontinued during that period. Their appointment orders contained conditions normally found in regular appointment orders. The Court further found that there was no allegation that the posts were not sanctioned, that the petitioners lacked qualifications, or that the recruitment process was improper.
The Court accepted the petitioners’ submission that Assistant Law Officers perform several duties apart from court appearances. The Legal Department also prepares agreements, leases, conveyances and memoranda of understanding, investigates titles of properties, and gives legal opinions to the civic administration. Therefore, even if the Supreme Court ultimately upholds the Full Bench judgment, the petitioners could still be assigned other legal work.
The Court made an important observation regarding the need for legal officers in the Corporation:
“Mumbai Municipal Corporation is one of the biggest Corporation in India who is having a budget of crores of rupees, needs personnel who are expertise in legal field.”
The Court further observed:
“It cannot be believed that Corporation is not in need of Law Officers.”
The Court also noted that several developmental projects, slum rehabilitation schemes and infrastructure projects are undertaken within Mumbai, and the experience of the petitioners in court work would help the Corporation in assessing legal aspects of decisions. On this reasoning, the Court concluded that the petitioners had made out a case for being treated as regularly appointed employees.
Conclusion
The Bombay High Court allowed the petition and declared that the petitioners are regular Assistant Law Officers Grade-II of the Corporation from their respective dates of appointment. The Court directed that they be granted all service benefits available to permanent employees.
The Court further directed the Corporation to consider them for promotion to the post of Assistant Law Officer whenever the occasion arises.
Final Order
The Court passed the following operative directions:
- The writ petition was allowed.
- The petitioners were declared to be regular Assistant Law Officers Grade-II of the Corporation and directed to be treated as regular employees from their respective dates of appointment.
- The petitioners were directed to be granted all service benefits available to employees upon becoming permanent.
- The Corporation was directed to consider the petitioners for promotion to the post of Assistant Law Officer as and when there is an occasion.
