Sanjeev Sirohi
Published on: 05 March 2023 at 21:38 IST
While speaking out most vocally as we see so very rarely usually, the Madras High Court in a most learned, laudable, landmark and latest judgment titled V Ayyadurai v. The State of Tamil Nadu and others in W.P. Nos. 19905, 20129 of 2020 and 298 of 2021 and cited in 2023 LiveLaw (Mad) 76, that was reserved on March 1 and then finally pronounced on March 3, 2023 has come down heavily on the State of Tamil Nadu for its orders determining a ceiling limit of fees payable to advocates appearing on behalf of the Government.
This laying down of ceiling limit is exactly what prompted senior advocate V Ayyadurai to file these writ petitions.
The government had determined that for pending arbitration matters, civil suits, original petitions, original side appeals, civil miscellaneous appeals and for regular cases, the fee which shall be payable would be 1% of the award/decree subject to a ceiling of Rs 10,00,000.
While making no bones in calling such fee fixation as arbitrary and irrational, the Single Judge Bench of Hon’ble Mr Justice CV Karthikeyan held that ‘Government Orders’ gave an impression that legal professional was reduced to that of a contract worker.
Of course, we ought to note that the Bench most commendably noted that the government should certainly appreciate the work done by the advocates in defending the policies of the governments in courts.
It certainly goes without saying that the government must definitely without fail pay heed to what the Bench has held so very commendably, cogently and convincingly in this leading case!
At the very outset, this extremely commendable, courageous, cogent and creditworthy judgment authored by the Single Judge Bench of Hon’ble Mr Justice CV Karthikeyan of Madras High Court sets the ball in motion by first and foremost putting forth in para 1 that, “All these writ petitions have been filed by the petitioner, Mr. V. Ayyadurai, a Senior Advocate of this Court who was also formal Additional Advocate General. Originally in the nature of a mandamus seeking a direction against the respondents to pay his final fee bill as raised in the three writ petitions.”
Needless to say, the Bench then states in para 36 that, “The following facts cannot be denied or disputed :
i. The petitioner is a Senior Advocate of this Court and former Additional Advocate General and had appeared on behalf of the State in the three arbitration matters for which he had raised fee bills.
ii. The fees as claimed by the petitioner had not been paid to him.
iii. The Government had introduced G.O.Ms.No. 339 Public (Law Officers) Department dated 08.05.2018 determining the fees payable to the law officers to appear for the Government in what can be broadly stated as the Original Side of the High Court.”
To be sure, the Bench specifies in para 38 that, “The petitioner is a professional. As a professional his legal skill, knowledge and acumen had been recognized and he had been designated as an Senior Advocate. He had also been appointed as Additional Advocate General for the State of Tamil Nadu. He had held that post and it can be stated that the sanctity and dignity attached to that post has to be recognized by this Court.”
To recapitulate, the Bench then recalls in para 39 mentioning that, “The petitioner had appeared for the Government also in arbitration cases. The three writ petitions now under consideration are with respect to the fee bills raised by him for his appearances in the three arbitration cases and for which payment has been denied.”
Quite palpably, the Bench then mentions in para 40 that, “The petitioner had appeared for the Government also in arbitration cases. The three writ petitions now under consideration are with respect to the fee bills raised by him for his appearances in the three arbitration cases and for which payment has been denied.”
Do note, the Bench then lays bare in para 41 stating that, “The Government had however introduced G.O.Ms.No. 339 of 08.05.2018. By that Government Order, the fees for the law officers had been declared payable on the scale stated in the Government Order.”
As we see, the Bench observes in para 43 that, “It is seen that the Government had determined that for pending arbitration matters, civil suits, original petitions, original side appeals, civil miscellaneous appeals and for regular cases, the fee which shall be payable would be 1% of the award/decree subject to a ceiling of Rs. 10,00,000/-. For sensitive cases which have huge financial implications on the Government, the fees would be determined by the Government on individual case to case basis.”
Simply put, the Bench specifies in para 44 that, “By G.O.Ms. No. 486 dated 23.07.2019, the words ‘award/decree’ had been amended and the words ‘value of the suit’ were substituted. However, the basic principle namely that a ceiling of Rs.10,00,000/- is determined was retained.”
Most candidly, the Bench then concedes in para 45 succinctly observing that, “The profession of law is a complicated profession. Legal acumen is required in consultation with the clients in preparing presuit notices, in preparing any other representations or petitions, in preparing and drafting a plaint to be presented before the Court, in preparing the documents to be filed, and if appearing for the respondents in preparing the written statement or the response to the claim and also preparing counter to all applications filed.”
Quite ostensibly, the Bench then propounds in para 46 that, “All these steps are taken within the Chambers of a legal professional. This would indicate the skill, knowledge and application of mind are required even in base preparation of written materials to be presented before the Court. It is only thereafter that the appearance in the Court commences. If urgent orders are required, then effective representation has to be made to the Court.”
Further, the Bench then also concedes in para 47 that, “Quite often the Government is always a respondent except when an appeal is filed. Then effective representation is to be made to defend and project the stand of the Government and prevent any interim order being passed to the disadvantage of the Government. These representations would only be on the first few hearings dates.”
Furthermore, the Bench states in para 48 that, “Apart from the preparedness of facts, spontaneity by the counsel is required to answer all questions. Thereafter, arguments will have to be advanced in applications or in suits or appeals. These would require special preparation within the confines of the Chambers and later effectively presenting them in the court.”
Most commendably, the Bench minces just no words to mandate in para 56 holding that, “A reading of the G.O.Ms. No. 339 gives the impression that the Government has reduced a legal professional wedded to the nuances of law to a contract worker. That cannot be done and should not be done. The Government must come forward to appreciate the effective work done by a professional in upholding the letter and spirit of the policies of the Government.”
Be it noted, the Bench notes in para 57 that, “Every case has not only financial implications but would also have far reaching implications sometimes touching upon the survival of the Government. I hold G.O.Ms. No. 339 has been passed oblivious of the reality of the situation.”
Quite forthrightly, the Bench laments in para 58 stating that, “It is unfortunate that it is projected by the learned Additional Advocate General as a just and equitable determination of the fees payable to a Law Officer who gives his sweat and blood to defend the Government, to project the policies of the Government and ensures that the policies are not struck down by courts of law.”
Most remarkably and so also most fundamentally, the Bench then sagaciously observes in para 59 underscoring that, “The value of an advocate representing the Government is immeasurable. It may be a small case, it may be a big case, still the Government has to be protected,”.
“Even if a common citizen comes seeking a legal heirship certificate and if the law officer is not able to justify either grant or denial of legal heirship certificate, it is ultimately the image of the legislature which is effected,”.
“That dignity and sanctity of the Government is in the hands of its law officers. These are facts which on the Executive or an Bureaucrat would never ever understand.”
Most rationally, the Bench then hastens to add in para 60 expounding that, “Determining a ceiling of Rs. 10 lakhs for appearances in arbitration matters or in civil suits defies logic. The Government Order is extremely irrational. It is not known why that amount was determined. It is not known on what basis that amount was fixed as being just and equitable. It is just another amount fixed by the Executive. It cannot be thrust on a professional.”
It would be instructive to note that while expressing its utmost disenchantment over the nonchalant manner in which the government orders were issued, the Bench then unequivocally holds in para 61 that, “The Government also has a duty to ensure that it recognizes the dignity of the legal profession. I am deeply distressed by the wordings in G.O.Ms. 339 and G.O.Ms. No.486. They have no connection to the efforts put by any Law Officer. I have no hesitation in holding that both the Government Orders are an insult to the legal profession.”
It is worth noting that the Bench clearly states in para 62 that, “Incidentally the consequential Government Orders are complained of in the writ petition. I am deeply conscious that the petitioner has not directly sought a certiorari against G.O.Ms. Nos. 339 or 486 but however the Court can declare that the said two Government Orders are extremely arbitrary and irrational in nature.”
As a corollary, the Bench directs in para 63 that, “The consequential G.O. (D) No. 182 HW and MP (HF2) Department dated 21.12.2021 and G.O. (D) No.29 Highways and Minor Ports (HV2) Department dated 01.02.2021, are both thus struck down.”
In addition, the Bench also directs in para 64 that, “The writ petitions are allowed with a direction to the Government to consider the fee bills raised by the petitioner in the light of the professional assistance rendered by the petitioner.”
Most refreshingly, the Bench unambiguously propounds in para 65 that, “The Government is always at liberty to fix rules and guidelines but Government Orders determining a ceiling as fees for a professional cannot be accepted by any court of law.”
Finally, we see that the Bench then concludes aptly by holding in para 66 that, “The writ petitions stands allowed with a direction to the respondents to examine the representations given by the petitioner with respect to the fee bills and pass appropriate orders within a period of 12 weeks from the date of receipt of a copy of this common order. No costs. Consequently, WMP Nos.24851 of 2020, 368 of 2021 are closed.”
In summary, we thus see that the Madras High Court has definitely set the record straight in clearly conveying that the legal professional cannot be reduced to a contract worker.
It has also very rightly taken potshots at the State Government for fixing the ceiling for government advocates fees.
It definitely merits no reiteration that the Tamil Nadu State Government must definitely comply in totality with what the Madras High Court has directed so very clearly, cogently and convincingly in this leading case!