This document clarifies the process for obtaining legal opinions and defending cases before the Central Administrative Tribunal (CAT). It highlights that when litigation is initiated in District Courts and direct advice from the Ministry of Law is not feasible, departments may seek opinions from State Government Counsel. However, the Ministry of Law’s Department of Legal Affairs must still be consulted. With the establishment of CAT and High Courts for service matters, seeking opinions from District Government Counsel is no longer applicable. Departments are advised to obtain legal opinions from the Department of Legal Affairs before making decisions on cases. If a case requires defense, it should be assigned to a Standing Counsel attached to the Tribunal. Any defense reply prepared by the counsel must be vetted by the Department of Legal Affairs. In case of an adverse judgment, the department must promptly obtain the judgment copy and the counsel’s opinion on filing a review or special leave petition, including grounds and reasons. This information, along with the counsel’s opinion, should be referred back to the Department of Legal Affairs for further advice, paying close attention to limitation periods for filing applications to avoid irreparable damage to government interests. The Judicial Section/O&M Section are also noted to review this before it is sent back to the administrative ministry.
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F.No.A-11019/36/89-AT
Government of India
Department of Personnel & Training
New Delhi, the 29 August, 1989.
Subject:-Central Administrative Tribunal – Whether legal opinion of Legal Remembrancer/Law Officer is necessary – Clarification regarding.
The undersigned is directed to forward herewith a copy of the Ministry of Law (Deptt. of Legal Affairs) Govt. of India I.D.No.11526/89-Adv.(A) dated 24.7.89 on the subject noted above for information, guidance and compliance to:-
- All Ministries/Departments of the Govt. of India.
- Dy. Registrars of all Benches of the Central Administrative Tribunals (As per list attached).
- Department of Legal Affairs, Ministry of Law & Justice (Judicial Section), New Delhi.
- Branch Secretariates of the Department of Legal Affairs at Bombay/Calcutta/Madras/Bangalore/Central Agency Section/Lit(UC)/Lit.(SC)/Sections of the Department of Legal Affairs, New Delhi.
- All Officers and Sections of the Department of Personnel & Trg.
- All Senior C.G.S.C./Addl. C.G.S.C. Standing Counsels as per list attached.
- This also clarifies the position with regard to the point raised in Ministry of Defence O.M.No.221/89/D(Lab) dated 24.2.89.
(Smt. P.V. Valsala G. Kutty)
Under Secretary to the Govt. of India.
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Dincle 1/25/49I.D. Note No.11526/89-Adv.(A) dated 24.7.89 from the Department of Legal Affairs.
Ministry of Law, Department of Legal Affairs is concerned with rendering legal advice to all the ministries, departments, attached/subordinate offices of the Central Govt. When a litigation is initiated in a District Court where it is not possible for the concerned department to obtain urgent advice from the Law Ministry the department used to seek the opinion of the District Govt. Counsel of the State Govt. attached with that Court in urgent matter. Even, in such cases the Deptt. of Legal Affairs have to be consulted later on as to the defence of the case.
- With the establishment of Central Administrative Tribunals these courts and also High Courts have not jurisdiction in service matters. The question of obtaining opinion from DGC of the State Govt. does not arise and, therefore, a legal remembrances as properly decline to give any opinion for defence of the cases before CAT.
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In most of the service matters the concerned department would have already obtained the opinion of the Legal Affairs Department in the matter at the stage of consideration of the case within the Deptt. Even, if a person goes to CAT the concerned department would have to consult the Deptt. of Legal Affairs for seeking opinion as to the defence of the case. A decision on defining a case should be taken by the concerned department only after obtaining such opinion. If the case is required to be defended the matter would be entrusted to the Standing Counsel attached to the concerned Tribunal unless the department engages another counsel. When a reply in defence is prepared by the Counsel entrusted to the case the same should be shown to Deptt. of Legal Affairs for vetting. If the judgement of CAT goes against the department they should immediately obtain a copy of the judgement and opinion of the Counsel who has handled the case as to whether he would recommend filing a Review petition or a Special Leave Petition indicating the grounds and reasons therefor. A reference should again be made to the Deptt. of Legal Affairs along with a copy of the judgement and the opinion of the concerned counsel for advice on the further course of action. While pursuing this course of action the limitation for filing Review application and SLP should invariably kept in mind and action taken by the concerned officer if necessary by personal contacts at all level because if limitation expires for seeking remedies available in law which may cause irreparable damage to Govt.’s interests.
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Judicial Section/O&M Section may also see before this is sent back to the administrative ministry.