Consultation only thru proper channel - LAWMIN
Attorney General for India, Solicitor General of India and the Additional Solicitors General of India are Governed by the Law Officers (Conditions of Service) Rules, 1987 and as per these Rules the Law Officer shall not advise any Ministry of department of Government of India or any statutory organization of any Public Sector Undertaking unless the proposals or a reference in this regard is received through the Department of Legal Affairs.
Now the Departmental of Legal affairs has observed that government departments have become independent and are overlooking this Legal Affairs Department and directly consulting the Law Officers thereby creating embarrassing situations for the Law Officers as well as the Department of Legal Affairs.
What could be the embarrassing situations for the Law Officers and the Department if a Commissioner of Income Tax seeks legal opinion from an ASG situated in his place? (Of course Commissioners are too big to go and meet a mere Additional solicitor General of India)
So now, the Departmental of Legal Affairs wants the Ministries/Departments of the Government of India to approach this Department for advice and not to approach the Law Officers directly.
This Department of Legal Affairs has its Branch Secretariats at Mumbai, Kolkata, Chennai and Bangalore, to cater to the advice/litigation matters of the Ministries/Departments of the Government of India situated in those regions respectively and therefore they want the government offices in these regions to approach the Branch secretariat and not the Law officers directly. So if the Commissioner in Hyderabad needs legal advice, he should not talk to the ASG who is just a kilometre away, but talk to the Branch secretariat in Bangalore who will then ask him to speak to the ASG in Hyderabad. Now you understand how the Government works - or rather doesn't work!
Incidentally the Government officers do not maintain any good rapport with their Departmental counsels either at the Tribunals or the Courts. The other day a Commissioner sent an Assistant Commissioner to brief the ASG. The whole office was aghast! Why an Assistant Commissioner, when an Inspector used to do this job all these years? Even the ASG was surprised that an AC chose to visit his office! And rumour is that the ASG will become a High Court judge any day!
Please have a look at TIOL-DDT 521 -28.12.2006 wherein we had discussed a Board Circular about the high Handedness and non-cooperative attitude of the Branch Secretariat, Kolkata.
The Board in F.No. SA Dated : December 15, 2006 stated
Instance have been brought to the notice of Board by Commissioners of Central Excise, Kolkata-II and siliguri that due to high Handedness and non-cooperative attitude of Branch Secretariat, Kolkata, they are finding it difficult to file appeals before the High Court against the orders of CESTAT which in their opinion are fit cases to agitate under Section 35G of the Central Excise Act. Similar instances were later brought to the notice by the Commissionerate of Customs, Mumbai and Commissionerate of Central Excise, Thane-II with regard to similar non-responsive attitude of Branch Secretariat, Mumbai.
2. Looking to the seriousness of the matter, issue was taken up with Secretary (Law), Ministry of Law & Justice and it was categorically stated that it is the statutory right of the Department to file appeals before the High Court against the orders of the CESTAT involving questions of law in terms of Section 35G of the Central Excise Act, 1944/Section 130 of the Customs Act, 1962 and that the Branch Secretariat, Ministry of Law & Justice have no right to exercise their dictum over the statutory right of the administrative Department.
By the time they decide whose dictum will prevail, the time to appeal will be over!