Jharkhand HC upholds Law Officer Rules 2026 but strikes Rule 3(7), orders rethink of Rs 20,000 researcher fee

Chief Justice M. S. Sonak and Justice Manoj Prasad held that an executive rule under Article 162 cannot dictate which lawyers statutory boards and corporations engage, upheld the practice thresholds and the bar on Law Research Officers appearing in court, and gave the State three months to reconsider a retainer that is below the minimum wage for highly skilled labour in Ranchi.

The Jharkhand High Court has upheld the Jharkhand Law Officer Engagement Rules, 2026 against almost every ground of attack, but has severed and struck down the one provision that reached beyond the State’s own litigation. Rule 3(7) required Boards, Corporations and other authorities funded by the State to take their lawyers from the Advocate General’s panel, at panel rates, and told them they could keep no retained counsel. A Division Bench of Chief Justice M. S. Sonak, who wrote the judgment, and Justice Manoj Prasad held that rule incurably vague, manifestly arbitrary and an impermissible encroachment on statutory autonomy. The bench refused to disturb the fee notification of 24 July 2026, but directed the State to reconsider, within three months, the Rs 20,000 monthly retainer fixed for Law Research Officers, a figure lower than the minimum wage notified for a highly skilled worker in the Ranchi Municipal Corporation area.

Three petitions against one set of Rules

The lead petition, W.P.(C) No. 6967 of 2026, was filed by Lal Gyan Ranjan Nath Shah Deo, a practising advocate from Ranchi. It was heard with a public interest petition by Rajeev Kumar Singh and a petition by the Young Lawyer’s Association of the Jharkhand High Court. Counsel agreed that the issues were identical and that one judgment could dispose of all three. The matter was reserved on 5 October 2026 and pronounced on 27 October.

Four instruments were under attack: the Rules, notified on 25 June 2026 and stated on their face to have been made under the proviso to Article 309 of the Constitution; two notifications dated 24 July 2026, one fixing the number of Law Officers in each category and abolishing the post of Associate Counsel, the other fixing retainership and appearance fees; and the Notice Inviting Online Applications, which the petitioners said should have come from the Advocate General rather than the Principal Secretary-cum-Legal Remembrancer of the Law Department.

Ms Ritu Kumar, Mr Navin Kumar and Mr Samavesh Bhanj Deo appeared in the lead petition, Mr Binod Singh and Mr Anmol Deepak in the PIL, and Mr Venkatesh Kumar with six others for the association. Ms Meenakshi Arora, Senior Advocate, argued for the State by video conference with Advocate General Rohitashya Roy, Senior Additional Advocate General Achyut Keshav and others. The bench annexed all four instruments to the judgment.

What the petitioners argued

Law Officers are not State employees and hold no post connected with the affairs of the State, the petitioners said, so the proviso to Article 309 could never have supported the Rules; the Patna High Court had struck down similar Bihar rules in Vijay Kumar Vimal v. State of Bihar, 2018 SCC OnLine Pat 1541. The practice thresholds in Rule 6, which they described as 15 and 12 years, could not stand when Articles 165(1) and 217 require only ten years for the Advocate General or a High Court judge. Rule 9, which keeps Law Research Officers out of court and away from private briefs, violated Article 19(1)(g) and Section 30 of the Advocates Act, 1961. Rule 3(7) was vague and overrode the statutory autonomy of Boards and Corporations whose interests may conflict with the State’s.

The restructuring, they said, had cut the strength of Law Officers by more than half: against a working strength of 145 Law Officers and Associate Counsel, the new framework provided for hardly 80, including 15 researchers who cannot appear at all, in disregard of State of Punjab v. Brijeshwar Singh Chahal, (2016) 6 SCC 1. On fees, an Additional Advocate General’s retainer had been fixed at par with a researcher’s, Standing Counsel and Government Pleaders would get less than the researchers, and a researcher’s retainer was below the minimum wage of a very skilled labourer.

The State concedes Article 309 and defends everything else

Ms Arora opened with a concession: Article 309 did not apply, and the Rules were an exercise of executive power under Article 162. But a wrong label does not invalidate an instrument if the power exists, she said, citing State of U.P. v. U.P. State Law Officers Association, (1994) 2 SCC 204, and M.T. Khan v. Government of A.P., (2004) 2 SCC 267.

Articles 165 and 217, she argued, set a minimum, not a maximum. The Rule 9 bar is co-extensive with a voluntary paid retainer: enrolment is not cancelled, and on disengagement the lawyer practises as before; she relied on Modern Dental College and Research Centre v. State of M.P., (2016) 7 SCC 353. Cadre strength and fees were policy, the Brijeshwar Singh Chahal assessment had been done through the committees the Rules create, and the fee notification gives each arguing Law Officer Rs 7,000 a month for a clerk and incentives for every 25 reported judgments in six months. Rule 3(7) was only a coordination mechanism, and no actual conflict of interest had been shown. She also questioned locus: some petitioners were not practising advocates and none had applied for the posts.

A lawyer for the State is a professional on retainer, not an employee

The bench fixed two reference points before turning to the grounds. The first was the nature of the engagement. In U.P. State Law Officers Association the Supreme Court held that these are predominantly professional contractual engagements between a professional and a client; a ban on private briefs does not convert them into employment, which is why Rule 49 of the Bar Council of India Rules carves such law officers out of the bar on full-time employment. Because a public body is a trustee of public interests, it must make earnest efforts to find the best lawyer available and show that a search for merit was undertaken.

The second was the reach of judicial review. Tata Cellular v. Union of India, (1994) 6 SCC 651, confines the court to the decision-making process. State of U.P. v. Johri Mal, AIR 2004 SC 3800, applies that to law officers: the choice rests with the Government, no one can claim a right to appointment, and the court steps in only where the State fails in a public duty, departs from its declared policy or ignores a mandatory provision. The same restraint governs policy expressed in rules or executive instructions, the court said, citing Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216, and Santosh B. Naik v. State of Goa, 2026 INSC 1089.

Wrong Article, right power

The reference to Article 309 was an obvious error, the bench agreed; M.T. Khan traces the power to appoint Additional Advocates General to Article 162, and the State had admitted as much in its counter-affidavit. But M.T. Khan also records that an order is not invalidated by a wrong citation of the source of power if the power exists, and the Constitution Bench in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, holds the same for an omitted provision. Once the Rules were traceable to Article 162, naming Article 309 could not sink them. Vijay Kumar Vimal was different: there the State of Bihar offered to rectify the reference and the Patna High Court directed rectification on that proposal, without deciding whether the wrong reference invalidated the rules.

Ten years is a floor, not a ceiling

Rule 6, as the bench described it, requires not less than 15 years of practice or designation as Senior Advocate for Senior Additional Advocate General and Additional Advocate General, 20 years or designation for those posts in the Supreme Court, 15 years of Supreme Court practice for Standing Counsel there, 12 years for Standing Counsel in the High Court, and 20 years for an arguing counsel in the Supreme Court.

None of these is a constitutional post like the Advocate General. They are professional engagements under Article 162, and once that is accepted there is nothing manifestly arbitrary in asking for more than ten years. J. Rangaswami v. Government of Andhra Pradesh, (1990) 1 SCC 288, holds that courts do not evaluate prescribed qualifications, and Chief Manager, Punjab National Bank v. Amit Kumar Das, (2021) 12 SCC 80, gives the employer latitude unless it acts fancifully. The constitutional premise was also wrong: Articles 165(1) and 217 fix ten years as a minimum and say nothing about a maximum the State may ask of its other counsel. The graded requirements had an obvious nexus with the work. The bench did not read Vijay Kumar Vimal as laying down a blanket ten-year cap, and said that if it did, it respectfully disagreed.

Research officers can be kept out of court

A Law Research Officer is privy to the State’s sensitive files and works closely with the Advocate General. If the State perceives that a lawyer free to take private briefs cannot offer undivided loyalty and confidentiality, that perception is neither irrational nor arbitrary, and the question for the court is only whether it is irrational, not whether the judges share it. Similar covenants appear in the Law Officers (Conditions of Service) Rules, 1987, the Andhra Pradesh Law Officers Rules, 1999, and the law researcher schemes of the Supreme Court and the High Courts, including Jharkhand’s own.

Rule 9 is not a prohibition on practice but a condition of an engagement that an advocate may accept or decline; having accepted the honorarium, the appointee is bound ex contractu, and the condition is a reasonable restriction saved by Article 19(6). Running the fourfold test from Modern Dental College, the bench found a legitimate aim in securing exclusive attention to State research, a rational connection because a desk-based officer is best served by a clean bar, necessity because the State’s view that lesser alternatives would not secure undivided research time was not unreasonable, and balance because the condition is temporary and voluntary. The Patna rule was different: it engaged assisting counsel and then forbade them from arguing once pleadings closed. Here the researcher is never engaged to appear; the exclusion defines a post created so that arguing Law Officers are not dependent on an unregulated pool of associate counsel.

Rule 3(7): an executive instruction cannot pick a municipality’s lawyer

Rule 3(7) provides that counsel for Boards, Corporations and other authorities funded and run by State funds shall be engaged case by case by the Advocate General alone, from the panel of Law Officers, at a fee not exceeding the Rule 12 scale, and that for non-litigation work the body’s law department must likewise engage only from the panel. It ends by declaring that there shall be no retained counsel for such bodies.

“Other authorities” is undefined, the bench noted, so the rule would sweep in State-funded cooperative societies and local bodies from municipal corporations to village panchayats, all of which have governing boards under their own statutes. The State had admitted that the Rules were only executive instructions under Article 162, and the court asked how such instructions could fetter statutory bodies in choosing their lawyers. Section 523 of the Jharkhand Municipal Act, 2011, for instance, lets a Municipal Commissioner obtain such legal advice and assistance as he considers necessary, and that power cannot be whittled down by executive instruction. Where a board’s interest conflicts with the State’s, forcing it to use counsel chosen by the Advocate General from the State’s own panel would be arbitrary. If a State-controlled governing body itself resolves to use panel counsel, that might be unobjectionable; dictating the outcome by executive fiat is not.

The rule was also hopelessly unclear. “Boards, Corporations and other authorities” and “funded and run by the funds of the State Government” each admit several readings, and the final sentence on retained counsel the court called “utterly incomprehensible and vague”. That attracted the void-for-vagueness doctrine, traced from State of Madhya Pradesh v. Baldeo Prasad, AIR 1961 SC 293, through K.A. Abbas v. Union of India, (1970) 2 SCC 780, to Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Rules 7(3) and 13, which restrict Law Officers from acting against the Government and let the Advocate General engage special counsel, did not address a board’s freedom to choose its own lawyer. As for the State’s worry that funded bodies might waste money on lawyers, the statutes creating those bodies give the Government its own powers of control; executive fiat is not one of them. Rule 3(7) was held manifestly arbitrary, incurably vague and violative of Article 14, and because it operates as a standalone mechanism it was severed without touching the rest of the Rules.

Rs 20,000 a month for a lawyer with up to five years at the Bar

The fee notification survived. Fixing retainers is policy, the bench said, and a higher earlier ceiling is no ground to strike the new one down. But it recorded prima facie reservations about one figure. Rule 9 requires a Law Research Officer to have two to five years of practice, keeps him out of court and forbids private briefs, and the notification then pays him Rs 20,000 a month and no more.

Ms Arora said several applicants had applied despite the fee. The bench was unmoved: that perhaps reflects the struggles of a fledgling advocate, for whom Rs 20,000 may be better than nothing, and a State expected to be a model engager should not build on that. The figure appeared “perilously close to the State exploiting the unfortunate plight of young Advocates”. The court set it against the State’s own minimum wage notification of 25 May 2026, which classifies the Ranchi Municipal Corporation area as Category-A and fixes the wage for a highly skilled worker there at Rs 21,336, made up of a basic wage of Rs 19,396 as on 11 March 2024 and variable dearness allowance of Rs 1,940 from 1 April 2026. Mindful of the limits of judicial review, the court did not strike down the fee or substitute a higher one; it directed the State to reconsider the researchers’ retainer and decide within three months.

A cadre of 81, and the Brijeshwar Singh Chahal test

Brijeshwar Singh Chahal, the bench recalled, holds that no lawyer has a right to be appointed State counsel, that appointments must rest on merit, and, in paragraph 49, that there must be a realistic assessment of need based on workload and a credible selection by a committee of officers with the Law Secretary as Member-Secretary. The Jharkhand Rules contain that machinery. Rules 3(4) and 3(5) let the Government fix and revise the number of Law Officers, in consultation with the Advocate General, on an assessment of the workload of Government cases, the number of courts, the nature of the work and subject specialisation. Rule 4 creates a Search Committee chaired by the Advocate General with the Principal Secretaries of Personnel and Home, which prepares a panel of up to twice the determined number, and Rule 5 a Selection Committee chaired by the Law Minister with the Advocate General, the Chief Secretary and the Legal Remembrancer. The court could not accept that the Supreme Court’s directions had been honoured only in the breach.

The numbers also told a different story from the petitioners’. The counter-affidavit put the new strength at 81, of whom 66 are arguing counsel and 15 are researchers, against an earlier sanctioned strength of 29 arguing counsel; the Mines and Land and Ceiling posts had been subsumed into Government Pleaders, and Ms Arora stated that the figure could be revised upward if litigation demanded. Courts do not decide how many Law Officers a State should have unless manifest arbitrariness is shown and the administration of justice suffers, the bench said, noting that the Supreme Court in U.P. State Law Officers Association had upheld the abolition of the brief-holders system and that Rule 13 allows special counsel from outside the panel where needed.

A notice signed by the Law Secretary does not diminish the Advocate General

The challenge to the notice inviting applications was called misconceived. The office of the Advocate General “is not so fragile as to be degraded by such matters”, the bench said; it rests on surer constitutional foundations. The Law Secretary issued the notice because the Rules make him Member Secretary of the Selection Committee, a notice is not an engagement, and no Article 165 function had been conferred on him. The Allahabad High Court’s decision in U.P. State Law Officers Ministerial Staff Association v. State of U.P., 2023:AHC:219833-DB, did not lay down that every such advertisement must bear the Advocate General’s signature, and if it did, the bench said with respect, it disagreed.

Locus upheld, presumption of constitutionality left open

The court doubted whether the presumption of constitutionality applies to executive instructions under Article 162 with the rigour it has for legislation, citing Bihar Rajya Dafadar Chaukidar Panchayat v. State of Bihar, 2025 SCC OnLine SC 1882, but left the point undecided. The locus objection was rejected: the lead petitioner is a practising advocate and the association represents advocates of the court, rules fixing the strength and terms of Law Officers directly affect the Bar, and a public-spirited advocate need not apply for the posts before invoking Article 226.

Order

The bench rejected the locus objection; rejected the challenge based on the reference to Article 309; rejected the challenges to the eligibility conditions in Rule 6 and the restrictions in Rule 9; upheld the challenge to Rule 3(7), severing it and declaring it null and void as ultra vires Article 14; rejected the challenges to the notification of 24 July 2026 fixing cadre strength; rejected the challenge to the fee notification of the same date, subject to a direction that the State reconsider the monthly retainer for Law Research Officers and decide within three months; and rejected the challenge to the notice inviting applications. The three petitions were disposed of without costs, the rule made absolute in part and otherwise discharged, pending applications closed and interim orders vacated. The judgment is marked approved for reporting.