Decided on September 15,1992

Central Government Panel Counsel Clerks Association, High Court Appellant
Joint Secretary, Ministry Of Law And Justice, Government Of India Respondents


Susanta Chatterji, J. - (1.)The present petition has been filed by the Central Government Panel Counsel Clerks Association and 33 others praying, inter alia, for a Writ of Mandamus to command the Respondents to withdraw, cancel and/or to rescind the purported decision stopping the clerkage as contained in the memo dated February 6, 1990 being in Annex. 'B' to the petition and for other consequential reliefs. Petitioners Nos. 2 to 34 are the registered clerks of the Advocates practising in this Hon'ble Court, their duties are to assist the Advocates in maintaining the offices and chambers, particularly, maintaining proper records of briefs and other papers in their offices and chambers and to keep consistent watch in the progress and/or running of the list. The Central Government engages the learned Advocates or Senior Counsels on the basis of a panel prepared by them. The Petitioners working as their clerks have to perform the duties mentioned above, similar jobs as are usually done in respect of non -Government clients or private ones. From Annex. 'B', it appears that there is a revised scheme containing the terms and conditions for the engagement of Special Panel Counsel, Senior Counsel Group I and Group II and Junior Counsel/Advocate on record in respect of Civil and Criminal litigations and cases as may be entrusted to them in the Calcutta High Court. In the said terms and conditions, it is provided that the Counsel will not be entitled to the payment of clerkage on the tees payable to them. Grievance of the Petitioners is against such stipulated condition. A representation has been made that the registered clerks serving their masters have their livelihood through the clerkage. The attention of the Joint Secretary, Ministry of Law and Justice, Government of India, was drawn that a mass representation which was made in the year 1968 in which an order was made for obtaining clerkage at the rate of 5 per cent in the year 1971, but in 1977 by Memo. dated February 17, 1979, clerkage has been enhanced to 10 per cent. This system was going on and there is no reason to perpetually stop the system and to deny the clerkage. Being aggrieved, the Petitioners have come up to writ Court seeking the reliefs as prayed for in the petition as indicated above.
(2.)It is contended that there is no reason to justify the decision stopping the clerkage. Such decision is arbitrary and sudden stoppage of clerkage affects the livelihood of the clerks and violates the provisions of Article 21 of the Constitution.
(3.)The writ petition is opposed by the Respondents by filing affidavit -in -opposition, wherein it is disclosed that since the Petitioners' claim that they are registered clerks of the Panel Counsel and render service to such Counsels, there is no privity of contract between the Petitioners and the Union of India. The Panel Counsels are included in panel on the basis of acceptance of such Counsel and the clerks of such Counsels are not parties to the agreement. The terms and conditions of engagement of panel lawyers of 1987 clearly envisage non -payment of clerkage to the clerks. It has been canvassed that the decision impugned not to pay clerkage is not contrary to the provisions of law.
It is placed on record that there cannot be any comparison with the private clients also since the Ministry of Law, Justice Branch Secretariat, Calcutta, engages only the Panel Advocates. It has approximately 45 Court clerks who are whole -time Government servants and whose duty is to watch the Court proceedings, mark the list and inform and bring the Panel Advocates to Court at the hearing, in addition to their other clerical duties such as maintaining proper records of proceedings etc. It is, further, slated that there are two different sets of litigation system, one conducted by the Central Government Standing Counsel in various other High Courts and another by the Branch Secretariat of Ministry of Law and Justice, at Calcutta and Bombay. The Central Government Standing Counsels are the sole in charge of litigation and they conduct cases independently, and the clerical work in their office is performed by their own clerks. In the panel counsel system in Calcutta High Court the Counsels are not the sole in charge of the cases. They are paid fee for the item of work which they are required to perform by the Branch Secretariat. The Court clerks employed on regular basis by the Government of India are performing the clerical work for the Government litigation, and such all facts have been overlooked by the Petitioners and the claim as made is without any merit and the scheme has been made and the circular issued, has not been properly appreciated and the Petitioners are not entitled to reliefs as prayed for.


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