‘Labels don’t define reality’: Punjab and Haryana High Court steps in as Haryana tries to deny full benefits to its lawyers

The relationship between a lawyer and his client, whether an individual or the state, occupies a position of trust and confidence, the court observed. (Image is enhanced using AI)

Lead petitioner advocate Shruti Jain Goyal and other lawyers had sought the quashing of the order issued by the finance department for “re-fixation” of their pay from the date of joining and to recover alleged excess amounts. They also sought the grant of medical allowances and other benefits, granted previously to those appointed before them.

‘Lawyering principal source of livelihood’

• The legal profession has become a full-time occupation and the principal source of livelihood for many, and its essential character as a profession governed by ethics, independence and responsibility has remained unchanged.
•  The appointment of lawyers by the government and public bodies, and the incidents of such appointment, cannot be examined merely through the narrow prism of contractual terminology.  
• The legal profession, at its core, is a service-oriented profession, and its history is inseparable from the history of justice itself.
• The journey of lawyers emerging from spokesperson for rights to officer of the court reflects a distinctive civilisational trajectory, refined through colonial institutionalisation, and transformed by constitutionalism. 
• When the state engages lawyers to represent it, though the character of that engagement does not convert into ordinary employment, the institutional responsibility remains heavy. 

‘Service benefits cannot be selectively withheld’

• Advocates Goyal and Komal Klana argued that the exclusion of leave travel concession (LTC), earned leaves and medical reimbursement in the case of post 2016 law officers violated the governing service rules and was contrary to the terms of their appointment.
• They argued that the petitioners were appointed against the sanctioned post on a regular revised pay scale under the Haryana Civil Services (HCS)(RP) Rules, 2016, with usual government allowances.
• The petitioners were treated as whole-time government servants, barred from private practice and paid from the consolidated fund under the “salary” head, with tax deducted the same as professional fees. 
• Therefore, in law and in practice, their status was the same as that of any government employee; merely tagging their appointment as “engagement” cannot deny LTC, earned leaves and other medical benefits as applicable to other government employees.
• It is contended that the petitioners had been granted revised pay scales and were granted enhanced medical allowances, therefore reinforcing their claims that the remaining service benefits cannot be selectively withheld.
• HCS (Leave) Rules, 2016, entitled even contractual employees to all types of leave admissible to regular Government servants, hence the petitioners are eligible to enjoy the same benefits as regular government employees.

Different nature of duty

• Additional Advocate General Amit Sahni submitted that the engagement letter showed the terms and conditions as contractual in nature, liable to be terminated at any time and thus the petitioners had no right to claim the benefits at par with the regular service.
• Sahni said that the petitioners cannot claim parity in matters of the LTC allowances as they perform a different type of duty than government employees.
• He submitted that the petitioners were not only governed by the engagement letter, which they accepted voluntarily, but also under the Haryana Law Officers Act, which was implemented after the petition was filed.
• He argued that the petitioners were not government employees and not eligible to be regulated under the service rules of the government employees; instead, only eligible for terms and conditions under contractual employees.
• It was submitted that, according to a government communication dated April 24, 2010, LTC was only applicable to government employees who had completed one year of service and had a contract of more than four years.
• The petitioners had their contract extended year to year and not for a fixed period exceeding four years, hence not entitled to LTC.
• Regarding earned leave, he argued that the petitioners are not entitled to it under the HCS (leave) Rules, 2016, as their engagement terms do not provide such provisions for providing earned leave and other allowances.

State, largest litigant

• In today’s times, the state is the largest litigant and its decisions touch every sphere of civil, economic and social life. 
• Law officers representing the state stand at the intersection of executive action and judicial scrutiny. 
• Their role is neither transient nor ornamental; it is structural to constitutional governance with a constitutional obligation to protect the interests of the state with diligence and integrity. 
• Given the constitutional significance of their duties, the continuous and indispensable nature of their work, and the heavy responsibility they bear in representing the sovereign before courts, such officers are entitled to be treated on par with regular incumbents.
• To restrict their entitlements based on nomenclature alone would be arbitrary, undermine the dignity of the profession, and contravene the principles of equality, consistency, and legitimate expectation inherent in constitutional governance. 
• The petitioners discharge full-time responsibilities, including representing the state before constitutional courts, tendering legal opinions, vetting pleadings, and advising Government departments. Their role is neither casual nor consultative but is institutional and continuous in nature.
• Once the state treats the petitioners as regular salaried officers for all substantive purposes, it cannot, without a rational basis, carve out exceptions that operate to their favour.
• By foregoing independent professional opportunities, they dedicate themselves entirely to the service of the State, and denying them entitlements such as earned leave and medical reimbursement would be to impose the rigours of public service without affording its minimal securities.

‘Contractual appointment’

• Haryana enacted the Haryana Law Officers (Engagement) Act, 2016, to regulate deputy advocate generals (DAGs) and assistant advocate generals (AAGs) in the office of the advocate general.
• The act established that such engagements should be purely on a contract basis, for terms and entitlements including pay, benefits, privileges, and protocol, as determined by the state Government and specified in the terms and conditions of engagement. 
• The act constituted a selection committee to recommend appointments with the state government, the final appointing authority, with the advocate general empowered to engage up to five special advocates, with the state’s approval.
• Pursuant to the advertisement dated December 29, 2017, issued by the advocate general’s office, petitioners 1 to 8 and petitioners 9 to 17 were appointed as DAGs and AAGs, respectively, by the engagement letters dated June 30, 2018.
• Their appointments were initially for one year, extendable annually based on performance. Some of the petitioners had earlier served or were already working in similar positions.
• The appointments were purely contractual under the Act, with no claim to regular government service. Their duties included giving legal advice, representing the state in courts and tribunals, and handling constitutional references under Article 143.
• The engagement letter prescribed the terms and conditions of pay and benefits under the 6th Central Pay Commission (CPC), plus Non-Practising Allowance (NPA) and government-approved allowances.
• For DAGs, the pay scale was between the range of Rs 37,400 to Rs 67,000, grade pay of Rs 10,000, NPA of Rs 2,500 and entry pay of Rs 43,390, along with entitlement to contractual leave and fixed medical allowance (no medical reimbursement).
• For AAGs, the pay scale was between the range of Rs 15,600 to Rs 39,100, with a grade pay of Rs 8,000, NPA Rs 2,000, and entry pay Rs 28,00o with the same leave and medical terms applied.
• Subsequently, with the order dated August 18, 2018, their pay was revised under the 7th CPC, with DAGs level 19 for Rs 1,49,900 basic pay and AAGs, level 13, for Rs 93,800.

‘Re-fixation’

• After 2.5 years, during the audit of accounts for the period of April 1, 2018, to March 31, 2021, objections were raised alleging pay fixation.
• On December 23, 2020, showcause notices were issued by the finance department seeking re-fixation of their salaries from the date of joining and for the recovery of alleged excess amounts.
• The petitioners submitted that their pay was fixed according to the contractual terms and conditions under the Act.
• The state, however, directed the respondents to recover the alleged excess amount from each of the petitioners.
• On August 31, 2021, the high court issued a notice to the state, and written statements were filed by the respondents.
• While the state subsequently accepted all the reliefs, it held that the petitioners were not entitled to medical reimbursement, LTC facility and pensionary benefits or earned leave. 

‘Entitled to the relief’ 

• The relationship between a lawyer and his client, whether an individual or the state, occupies a position of trust and confidence.
• When the client is the state, the lawyer’s responsibility acquires a constitutional dimension, as it becomes an instrument in the administration of justice affecting the public at large.
• The legal profession has been recognised by the apex court as a profound responsibility which occupies a position in the administration of justice and cannot be equated to any other traditional profession. 
• Therefore, the engagement of legal professionals as law officers of the state cannot be simply termed as “contractual” in nature to deny fairness and parity in service benefits.
• The petitioners will not be selectively excluded from core service benefits. Deviation from such established practice must satisfy the test of reasonableness, which the respondents have failed to demonstrate.
• No material has been placed before this court to demonstrate that full-time law officers discharging functions of the state should be denied LTC, earned leave and medical reimbursement while they continue to enjoy every other attribute of regular service.
• The court held that the petitioners were also entitled to the reliefs of LTC, medical reimbursement and other benefits.