Reply over engaging lawyer without AG nod: HC to Bihar edu dept

Advocate general PK Shahi also submitted that “more than the court he also feels embarrassed with the kind of situation created in the department by engaging a special counsel outside the rules of 2023

The Patna high court has directed the department of education to reply as to how it engaged a special counsel from outside the state without prior consent of the advocate general, who has the sole discretion in these matters as per the provisions laid down in Bihar Law Officers (Engagement) Rules, 2023. The next date of hearing is August 11.

The Patna high court said the advocate general has the sole discretion on engaging counsel from outside the state. (HT Photo)

“To avoid this unfortunate and embarrassing situation, this court being a Constitutional Court deems it just and proper to direct that till further order unless the AG exercises his discretion in terms of the rules of 2023, the department would not create this peculiar situation by sending special lawyer/advocate(s) in courts on its own,” said the bench of Justice Rajeev Ranjan Prasad, while hearing a case of music teachers’ appointment on July 20. The order was uploaded on July 21 evening.

Advocate general PK Shahi also submitted that “more than the court he also feels embarrassed with the kind of situation created in the department by engaging a special counsel outside the rules of 2023 which has got a statutory flavour.”

The peculiar situation arose in the court on July 20 in course of hearing of two writ applications related to music teachers’ applications in the ongoing teachers’ recruitment. The court ruled that they be allowed to participate.

The matters were mentioned by the counsel for the petitioners, saying that a counsel from outside Patna has been engaged as a special lawyer on behalf of the state and he has arrived. The counsel who arrived from Delhi was also present in the courtroom. ALS Nathkarni, senior counsel assisted by , advocates Santosh Paul and Rishi Awasthi, appeared as special counsel for the Bihar department of education.

However, the counsel for the state, SK Ranjan and Jitendra Kumar Roy, raised an objection on the appearance of Nathkarni and other advocates with him on the ground that they are not the lawyers duly representing the state in terms of Rule 13 of the Bihar Law Officers (Engagement) Rules, 2023.

“The two counsel for the state came with a submission that without the consent of AG, no special counsel may be engaged by the administrative department. Nathkarni informed this court that the department has filed vakalatnama and it must have been done with the consent of the AG. The AG, however, categorically submitted that till date, he had not given any consent and had not exercised his discretion to engage any special counsel for the department of education in the cases pending in the Patna HC and the Supreme Court of India,” the court order says.

The AG placed before this Court Rule 13 of the Rules of 2023 which reads, “Special Counsel- notwithstanding anything contained in these Rules, the Advocate General shall have the discretion to engage for the Patna HC and the SC, on such terms and fee as may be fixed, in consultation with the administrative department and the law department, an Advocate for the government as a Special Counsel who is not a law officer under these Rules, in case (s) involving important issue(s) for the Government.”

After the court said that “it has been left embarrassed”, Nathkarni and other advocates too said that even they are not feeling happy with the situation.

Later, Shahi told HT that the rules were categorical on the criteria for engaging lawyers from outside and it was applicable to all the departments. “The department of education has to submit its reply how it engaged lawyers from outside on its own,” he added.