REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3194 OF 2016
(Arising out of SLP(C) No.8416/2016 @ CC No.5470 of 2014)
State of Punjab & Anr. …Appellants
Versus
Brijeshwar Singh Chahal & Anr. …Respondents
WITH
T.P. (C) NO.1073 OF 2015
Pardeep Kumar Rapria …Appellant
Versus
State of Haryana and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, CJI.
1. Leave granted.
2. This appeal and the accompanying transferred petition raise a
question of considerable public importance. The question precisely is
whether appointment of law officers by the State Governments can be
questioned or the process by which such appointments are made, can be
assailed on the ground that the same are arbitrary, hence, violative of the
provisions of Article 14 of the Constitution of India. Before we advert to
the juristic dimensions of that question, we may briefly set out the
factual backdrop in which the same falls for our consideration.
3. Petitioner No.1 to the writ petition was initially appointed as an
Assistant Advocate General in terms of an order dated 23rd April, 2002. The
appointment was on contractual basis valid upto 31st March, 2003, but the
same was continued by an order dated 19th July 2003 upto 31st March, 2004.
He was four years later appointed as Deputy Advocate General in the pay
scale of Rs.18,400–22,400/- by an order dated 11th January, 2008. His
tenure was later extended upto the year 2011-2012 in terms of a memo dated
19th April, 2011.
4. Petitioner No.2 to the writ petition was similarly appointed as an
Assistant Advocate General on contract basis and then to the post of Deputy
Advocate General by orders issued in his favour from time to time. In
Civil Writ Petition No.2000 of 2011 filed by the respondents before the
High Court of Punjab and Haryana at Chandigarh they made a grievance
against their non-absorption on regular basis while Smt. Sonu Chahal-
respondent No.3 in the writ petition was appointed as Senior Deputy
Advocate General on contract basis in the pay scale of Rs.37,400-67,000/-
and a grade pay of Rs.10,000/-. The writ petitioner/respondent No.1 herein
questioned the fairness and legality of the approach adopted by the
appellant herein/State in picking and choosing candidates for regular
appointment and/or for absorption. It was contended that while respondent
No.1 herein had started his career as an Assistant Advocate General and was
re-designated as Deputy Advocate General in the year 2008 in which capacity
he was working for the past nearly eight years, petitioner No.2 in the writ
petition had just about six years of such experience while respondent No.2
herein had no more than four years and five months experience before she
was absorbed as Senior Deputy Advocate General in the office of the
Advocate General. The grievance of the writ petitioners/respondent No.1
herein was that the State Government had formulated no criterion and
followed no norms for absorption on a non-discriminatory basis of those
working as Law Officers of the State. The absorption of petitioner No.2 and
respondent No.3 was dubbed as illegal, arbitrary and discriminatory in the
writ petition; and a direction to the appellant to frame a policy, laying
down guidelines for making appointment/absorption/re-designation in the
office of the Advocate General and to evolve and prescribe suitable
criterion for regularisation or absorption of those working in that office
prayed for. A certiorari quashing order dated 23rd September 2011 by which
respondent No.3 was absorbed on the post of Senior Deputy Advocate General
was also prayed for, besides a mandamus directing the State to consider the
case of the writ petitioners for absorption.
5. A Single Judge of the High Court before whom the writ petition came
up for hearing, issued notice to the respondent in the writ petition and
stayed the termination of the services of petitioner No.1 in the meantime.
The State Government appeared in response to the notice to contest the writ
petition, inter alia, on the ground that the appointment of petitioner No.1
was contractual in nature terminable at any point of time. It was also
urged that petitioner No.2 in the writ petition had been absorbed
considering her good performance.
6. By an order dated 18th October, 2012 the writ petition filed by the
respondent was admitted to hearing and the interim direction restraining
the State Government from terminating the services of the writ petitioner-
respondent No.1 continued. With the contractual tenure of respondent No.1
as Deputy Advocate General coming to an end on 31st October, 2012 his name
does not appear to have figured in the list of Deputy Advocates General
appointed by an order dated 31st October, 2012. Petitioner No.1/Respondent
No.1 herein alleged this to be a breach of the order passed by the High
Court restraining the termination of his services and filed contempt
petition No.3421 of 2012. The State also filed CM No.17076 of 2012 for
clarification of the interim orders dated 21st October, 2011 and 18th
October, 2012, inter alia, contending that the contract period of
respondent No.1’s appointment having expired, he was not entitled to the
benefit of the interim orders passed by the Court. That application was
dismissed by the learned Single Judge in terms of an order dated 1st
December, 2012 as misconceived for in the opinion of the Court no
clarification of interim order dated 21st October, 2011 restraining
termination was necessary. Aggrieved by order dated 1st December, 2012
passed by the Single Judge, the State preferred LPA No.1458 of 2013 which
was dismissed by a Division Bench of the High Court by its order dated 25th
September, 2013 impugned in the present appeal.
7. In transferred writ petition No.247 of 2015 (renumbered as T.P (C)
No.1073 of 2015), the petitioner had prayed for quashing of certain State
Government orders besides a mandamus directing the State of Haryana to
engage him as a Law Officer. The petitioner has, however, given up his
challenge to the orders impugned in the writ petition and confined his
prayer to a direction for consideration of his case. It was submitted that
the issues raised in the writ petition were generally the same as have been
raised in connected SLP (C) No. (CC) No.5470 of 2014 and the writ petition
out of which the said appeal arises. Those submissions were recorded and
Writ Petition No.247 of 2015 transferred from the High Court of Punjab and
Haryana at Chandigarh to this Court for final disposal. That is precisely
how the appeal and the writ petition have been heard together for disposal
by this common order. The following questions fall for our determination :
(1) Whether the States of Punjab and Haryana have made any realistic
assessment of their requirement before making appointments of Law Officers.
(2) Whether the States of Punjab and Haryana have formulated any scheme,
policy, norms or standards for appointing Law Officers.
(3) Whether appointment of Law Officers by the State Governments need to
be made on a fair, reasonable, non-discriminatory and objective basis; and
(4) If answer to question Nos.1, 2 and 3 are found in the negative, what
is the way forward?
Re: Question No.1
8. A realistic assessment of the requirement is the first and foremost
step that one would expect the State to take for any prudent exercise of
the power of appointment of law officers. No such assessment has been made
nor any material disclosed by the State Governments to demonstrate that
they were sensitive to the need for any such assessment. Power to appoint
Law Officers was all the same exercised on what appears to us to be a
totally ad hoc basis without any co-relation between the work load in the
Courts and the number of Law Officers appointed to handle the same. There
is no gainsaid that if the power to appoint is exercised not because such
exercise is called for but because of some extraneous or other reason the
legitimacy of the exercise will itself become questionable. That is
precisely what has been brought out by the Comptroller and Auditor General
in his report of Social, General and Economic sectors (non PSUs) for the
year ended 31-03-2012 for the State of Haryana. The report is a telling
indictment of the system of appointment followed in the State of Haryana
which does not provide for assessment of the manpower requirement leave
alone any worthwhile process of selection of those appointed. The result
is that more than half of those appointed were without any work during the
test check period resulting in payment of idle salary in crores. The CAG
has while finding fault with the entire process recommended a realistic
assessment of the number of law officers required on the basis of the
workload and selection of the appointees in a transparent manner. The
report also found the explanation offered by the State Government to be
unacceptable keeping in view the daily duty roster regarding the Law
Officer’s work and performance. The report of the CAG makes interesting
reading and may be extracted at this stage :
“4.2.2 Faulty selection of Law Officers
|Engagement of Law Officers without assessing workload |
|and without inviting applications resulted in payment of|
|idle wages of ` 2.22 crore. |
In order to deal with legal cases on behalf of Haryana Government in
various Courts of Law, Tribunals and Commissions, the Additional Chief
Secretary to Haryana Government, Administration of Justice Department
engages Law Officers in various capacities on contract basis as per terms
and conditions prescribed by the State Government.
With a view to verify the work assigned to these law officers and work
actually performed by them, the complete records relating to daily duty
rosters, vetting registers and cause lists of Courts for six months between
December 2009 and January 2012 maintained in the office of the Advocate
General, Haryana selected randomly was test checked (May 2012) and
following irregularities were noticed:
There was no prescribed procedure for assessment of work for engagement of
Law Officers on contract. The number of Law Officers on roll to plead legal
cases in various courts at Chandigarh increased from 98 in December 2009 to
179 in January 2012 although the number of courts where they were to defend
the cases remained the same during the above period.
The Law Officers were engaged without giving any advertisement or wide
publicity.
In the test-checked months, on an average, more than 50 per cent Law
Officers remained without work. As detailed in Table 2, on an average the
percentage of idle Law Officers with total available strength had arisen
from 54 in December 2009 to 78 in January 2012. There was no monitoring of
work assigned to these Law Officers by the Department.
Table 2: Detail of Law Officers (LOs) without work and payment of idle
salary
| |Number of |Working days |Average number |Percentage|Number |Idle |
| |LOs on |available in |of Los without |of LOs who|of Los |salary |
| |rolls |the month |any work on |remained |work |paid to |
| | |(excluding |particular days|without |for |LOs |
| | |Court |of the month |any work |complet|without |
| | |holidays and | | |e month|work for |
| | |vacations) | | | |wholesale|
| | | | | | |month (in|
| | | | | | |) |
|December |98 |11 |54 |55 |20 |10,33,872|
|2009 | | | | | | |
|August 2010 |137 |21 |70 |51 |27 |19,40,983|
|November |151 |18 |100 |66 | 42 |30,88,534|
|2010 | | | | | | |
|March 2011 |153 |22 |97 |63 |58 |42,21,554|
|November |169 |21 |123 |73 |63 |49,51,868|
|2011 | | | | | | |
|January 2012|179 |20 |140 |78 | 87 |69,48,786|
|Total Idle salary paid to Law Officers without assigning any work |
In the test-checked months, the number of Law Officers ranging between 20
and 87 had not been allotted any work for whole of the month resulting in
idle salary payment of 2.22 crore to these Law Officers for six months as
detailed above.
In January 2012, out of 179 Law Officers on the roll on an average, 140 Law
Officers had not been allotted any work and 87 Law Officers were without
work for whole of the month. However, later on the Department discontinued
the services of 26 Law Officers in June 2012. This shows that Law Officers
were engaged without assessing the requirement on the basis of work or work
norms or workload prevailing in the Department. No such exercise was found
to be done while engaging such Law Officers.
The matter was discussed in detail with the Additional Chief Secretary to
Government of Haryana, Administration of Justice Department in an exit
conference held on 23 October 2012. During the meeting it was stated that
some guidelines should be in place to assess the vacancies on the basis of
workload and selection of Law Officers should be made in a transparent
manner. The Department was doubtful about the high percentage of Law
officers without assigning any work and stated (November 2012) that though
the work was generally assigned to a team comprising more than one Law
Officer but in the daily duty roster name of only one Law Officer was
mentioned. It was further added that these Law Officers perform
multifarious duties/functions such as research of law for particular
pending cases, for general updating of latest case law, preparing factual
and legal notes, preparing compendium or judgments, etc. However, no
requirement or need was felt to keep record of such assignments as the
concerned Law Officers were responsible to deal with the cases entrusted to
them.
The contention of the Department that the names of all team members were
not mentioned in daily duty roster was not acceptable as during re-
verification of daily duty rosters, after the exit conference, it was found
that wherever a team was deputed for a specific work, names of all the team
members were mentioned therein.
Thus, the engagement of excess Law Officers without assessing the quantum
of work and without resorting to fair and transparent selection method,
resulted in allowing more than 50 per cent Law Officers without work and
payment of idle salary of 2.22 crore.”
9. We are not sure whether a similar study has been conducted qua the
State of Punjab, but given the fact that the number of law officers
appointed by that State is also fairly large, we will not be surprised if
any such study would lead to similar or even more startling results. The
upshot of the above discussion is that for a fair and objective system of
appointment, there ought to be a fair and realistic assessment of the
requirement, for otherwise the appointments may be made not because they
are required but because they come handy for political aggrandisement,
appeasement or personal benevolence of those in power towards those
appointed. The dangers of such an uncanalised & unregulated system of
appointment, it is evident are multi-dimensional resulting in erosion of
the rule of law, public faith in the fairness of the system and injury to
public interest and administration of justice. It is high time to call a
halt to this process lest even the right thinking become cynical about our
capacity to correct what needs to be corrected.
10. Question No.1 is accordingly answered in the negative.
Re: Question No.2
11. The question whether the States of Punjab and Haryana follow any
procedure for selecting practising advocates for appointment as law
officers have troubled us throughout the hearing. We had, therefore,
solicited information from the State of Punjab on certain specific
questions that we formulated in terms of our order dated 11th April, 2014
and asked the State to file an affidavit indicating the following:-
What is the procedure followed by the State Government for selecting
practising Advocates for appointment as Law Officers for the State of
Punjab?
Is there any selection or Search Committee constituted for the purpose of
making such selections? If so, what is the composition of the Committee?
If a Selection/Search Committee has been constituted, the proceedings of
the Committee regarding any appointment of Law Officers from time to time
be filed along with the affidavit.
Does the Government consult the High Court before finalizing the list of
appointments? If the High Court is not consulted, what is other method by
which the Government ensures that those picked up are the best at the Bar?
Total number of Law Officers appointed and currently working and the terms
on which the appointments are made shall also be filed along with the
affidavit.
12. We had, by a subsequent order dated 2nd September, 2015 passed in
Transferred Petition No.1073 of 2015, asked the State of Haryana also to
file an affidavit answering the above queries. Both the States have in
compliance with the said orders filed their respective affidavits. In the
affidavit filed on behalf of the State of Punjab it is, inter alia, stated
that there is no definite procedure statutory or otherwise governing the
selection and appointment of advocates practising as law officers in the
State of Punjab. Conventionally, these officers are engaged on contractual
basis on the recommendations of the Advocate General or in consultation
with him. At times, even the Government engages law officers after making
“discreet enquiries” about their suitability for such engagements. A
sizeable number of law officers so engaged are designated as Public
Prosecutors in consultation with the High Court of Punjab and Haryana. The
affidavit sets out in paragraph 4 answers to the questions on which the
State was required to respond. For the sake of convenience we may extract
verbatim the questions and the replies to the same:
“ 1) What is the procedure followed by the State Government for selecting
practicing Advocates for appointment as Law Officers for the State of
Punjab.
As stated hereinabove, the engagement of law officers to defend the State
Government in cases assigned to them cannot be regulated by Statute or
policy. Law officers are engaged on the recommendation of the Advocate
General of the State, based, inter alia, on the assessment of individuals
by the Advocate General as well as on recommendations made by colleagues,
peers and others. In some cases, the State Government engages law officers
after making discreet inquiries as to the suitability of the individual as
a law officer.
2) Is there any selection or search Committee constituted for the
purpose of making such selections. If so, what is the composition of the
Committee.
There is no selection or search committee constituted for making such
selections.
3) If a Selection/Search Committee has been constituted, the proceedings
of the Committee regarding any appointment of Law Officers from time to
time be filed along with the affidavit.
Not applicable, in view of response to item 2 above.
4) Does the Government consult the High Court before finalizing the list
of appointments. If the High Court is not consulted, what is other method
by which the Government ensures that those picked up are the best at the
Bar.
It is submitted that the Government does not consult the Hon’ble High Court
before finalizing the list of appointments, except in the case of public
prosecutors appointed under Section 24 of Code of Criminal Procedure, 1973.
It is submitted that this practice has continued over the years by
convention and is also followed by other State Governments. It is further
submitted that “best at the bar” is a subjective concept. In any event, as
is commonly known, most “successful” lawyers are unwilling to take-up the
responsibilities of holding such a position and make sacrifices since it
impinges of their private practice.
5) Total number of Law Officers appointed and currently working and the
terms on which the appointments are made shall also be filed along with the
affidavit.
(i) In reply to above, Point No. 5, the details of total numbers of Law
Officers currently working is given below:
|Sr. |Designation |No. of |
|No. | |Law |
| | |Officers |
|1. |Additional Advocate |74 |
| |General, Punjab | |
|2. |Senior Deputy Advocate |05 |
| |General, Punjab | |
|3. |Deputy Advocate General,|40 |
| |Punjab | |
|4. |Assistant Advocate |55 |
| |General, Punjab | |
|5. |Advocate-on-Record |02 |
The terms and conditions of engagement of the above Law Officers, who have
been engaged on contract basis on year to year basis, are yet to be
finalized by the Government as is clear from their sample engagement
letters and copies of sample engagement letters issued in respect of each
category of posts are attached herewith as Annexure P-16 to P-19 (Page Nos.
136 to 142).
(ii) It is stated that in four cases an exception was made and persons
were absorbed as Sr. DAG/DAG. With regard to these four cases it is
submitted that it would be wholly illogical to suggest that other advocates
engaged by the State as law officers, (who are required to work under the
Advocate General and to be guided in the discharge of their professional
duties as per the instructions and guidance of the Advocate General) should
be treated as “regular” employees of the Government merely because they are
paid a fixed fee or on a monthly basis calculated with reference to a pay
scale.”
13. The State of Haryana has also filed an affidavit in compliance with
the directions issued by us. In answer to question no.1 the State of
Haryana has stated that the appointments are made on contractual basis on
the recommendations of the learned Advocate General and that it is the
Advocate General who assesses their suitability for such appointments.
Neither a Selection nor Search Committee is constituted for the purpose nor
is the High Court consulted before the names are finalised.
14. From the two affidavits filed by the States it is manifest that no
procedure for selecting practising advocates for appointment as law
officers has been prescribed in the States of Punjab and Haryana. No
Selection or Search Committee is constituted or is even envisaged. It is
also clear that the two Governments do not consult the High Court before
finalizing the list of appointees. The affidavits do not at the same time
indicate as to how in the absence of any Selection or Search Committee the
State Government ensures a fair selection in which they pick-up the best
available and willing to accept the assignment as State counsel. The
affidavits place the burden of making the process of fair selection upon
the wisdom of the Advocates General of the two States. The affidavits do
not state whether the Advocate General, has, in turn, constituted a
Committee or followed any procedure or prescribed or formulated any norms
for assessing the merit of those willing to work as State counsel. The
affidavits do not even say if any applications are invited for appointment
as State counsel. All told, the appointments are based entirely on how the
Advocate General advises the State Government on the subject without the
Advocate General in turn conducting a selection process, assessing inter se
merit on an objective basis or maintaining any record of any such process
having been undertaken. The affidavits also do not rule out the possibility
of the Governments themselves appointing persons over and above those
recommended by the Advocate General on the basis of what the Affidavit of
the State of Punjab describes as “discreet enquiries”. The affidavits
suggest that the process has been going on for past many years. The States
also claim that the engagement of State counsel is a professional
engagement meaning thereby that the States have no obligation either to
prescribe a procedure or follow any definite method while making such
appointments. State of Punjab has asserted that the process of selection
and appointment cannot be regulated either by policy or by any statute.
15. We have not been able to persuade ourselves to accept the view that
even when the appointments are made to offices heavily remunerated from the
public exchequer the same can or ought to remain unregulated. That is
particularly so when those appointed are expected by the very nature of
their appointment to discharge important public function affecting not only
State interest but the quality of justice which the courts administer.
There is in the case of Punjab and Haryana not even a semblance of any
selection process in the matter of appointment of those chosen for the job
leave alone a process that is credible in terms of its fairness and
objectivity. The practice of making appointments in disregard of what is
expected of a functionary sensitive to the demands of fairness and equality
of opportunity even when in vogue for long, runs contrary to the true legal
position settled by a long line of decisions to which we shall presently
refer. The dominant purpose which ought to permeate any process of
selection and appointment namely “protection of public interest” in courts
by availing services of the most meritorious is clearly defeated by the
method that the States have been following and continue to follow. What is
regrettable is that even after the pronouncements of this Court have
settled the principles on which public authorities are required to act
while discharging their functions, the States continue to harp on the
theory that in the matter of engagement of State counsel they are not
accountable and that the engagement is only professional and/or contractual
hence unquestionable. It is, in our view, too late in the day for any
public functionary or Government to advance such a contention leave alone
expect this Court to accept the same. If a Government counsel discharges an
important public function and if it is the primary duty of those running
the affairs of the Government to act fairly, objectively and on a non-
discriminatory basis, there is no option for them except to choose the best
at the bar out of those who are willing and at times keen to work as State
counsel. It is also their duty to ensure that the process by which the
best are selected is transparent and credible. Abdicating that important
function in favour of the Advocate General of the State who, in turn, has
neither the assistance of norms or procedure to follow nor a mechanism for
assessment of merit will be self-defeating. We regret to say that in the
matter of appointment of State Counsel, the States of Punjab and Haryana
have much to do to reform the prevalent system which reform is in our
opinion long overdue. Question No.2 is also answered in the negative.
Re: Question No.3
16. It is by now, fairly well settled that not only the Government but
all public bodies are trustees of the power vested in them and custodians
of public interest. Discharge of that trust in the best possible manner is
the primary duty of those in charge of the affairs of the State or public
body. This necessarily implies that the nature of functions and duties
including the power to engage, employ or recruit servants, agents, advisors
and representatives must be exercised in a fair, reasonable, non-
discriminatory and objective manner. It is also fairly well settled that
duty to act fairly and reasonably is a facet of ‘Rule of Law’ in a
constitutional democracy like ours. A long line of decisions of this Court
over the past five decades or so have ruled that arbitrariness has no place
in a polity governed by rule of law and that Article 14 of the Constitution
of India strikes at arbitrariness in every State action. We may gainfully
refer to some of these decisions, not so much to add to their content as to
remind ourselves that we have come a long way in the matter of settling the
contours of the doctrine of Rule of Law of which equality is one
significant feature.
17. In S G Jaisinghani v. Union of India AIR 1967 SC 1427, this Court
held that absence of arbitrary power is the first essential of “Rule of
Law” upon which rests our Constitutional system. This Court ruled that in a
system governed by rule of law, any discretion conferred upon the executive
authorities must be confined within clearly defined limits. This Court
quoted with approval, the following observations of Douglas J. in United
States vs. Wunderlick 1951 342 US 98:96 Law Ed 113:
“Law has reached its finest moments when it has freed man from the
unlimited discretion of some ruler… Where discretion is absolute, man has
always suffered.”
18. A similar sentiment was expressed by this Court in E P Royappa v.
State of Tamil Nadu and Anr. (1974) 4 SCC 3 where this Court declared that
Article 14 is the genus while Article 16 is a specie and the basic
principle which informs both these Articles is equality and inhibition
against discrimination. Equality, declared this Court, was antithetic to
arbitrariness. The Court described equality and arbitrariness as sworn
enemies, one belonging to the rule of law in a republic and the other to
the whims and caprice of an absolute monarch. Resultantly if an act is
found to be arbitrary, it is implicit that it is unequal both according to
political logic and constitutional law, hence violative of Article 14 and
if it affects any matter of public employment it is also violative of
Article 16. This Court reiterated that Articles 14 and 16 strike at
arbitrariness in State action and ensure fairness and inequality of
treatment.
19. Then came the decision of this Court in Maneka Gandhi v. Union of
India (1978) 2 SCR 621, where this Court held that the principle of
reasonableness both legally and philosophically is an essential element of
equality and that non-arbitrariness pervades Article 14 with brooding
omnipresence. This implies that wherever there is arbitrariness in State
action whether, it be legislative or executive Article 14 would spring into
action and strike the same down. This Court held, that the concept of
reasonableness and non-arbitrariness pervades the constitutional scheme and
is a golden thread, which runs through the entire Constitution.
20. In Ramana Shetty v. International Airport Authority 1979 AIR (SC)
1628, this Court relying upon the pronouncements of E.P. Royappa and Maneka
Gandhi (supra) once again declared that state action must not be guided by
extraneous or irrelevant considerations because that would be denial of
equality. This Court recognized that principles of reasonableness and
rationality are legally as well as philosophically essential elements of
equality and non-arbitrariness as projected by Article 14, whether it be
authority of law or exercise of executive power without the making of a
law. This Court held that State cannot act arbitrarily in the matter of
entering into relationships be it contractual or otherwise with a third
party and its action must conform to some standard or norm, which is in
itself rational and non-discriminatory.
21. In D.S. Nakra v. Union of India 1983 (1) SCC 305, this Court reviewed
the earlier pronouncements and while affirming and explaining the same held
that it must now be taken to be settled that what Article 14 strikes at is
arbitrariness and that any action that is arbitrary must necessarily
involve negation of equality.
22. In Dwarkadas Marfatia v. Board of Trustees of the port of Bombay 1989
(3) SCC 293, this Court had an occasion to examine whether Article 14 had
any application to contractual matters. This court declared that every
action of the state or an instrumentality of the State must be informed by
reason and actions that are not so informed can be questioned under
Articles 226 and 32 of the Constitution.
23. Subsequent decisions of this Court in Som Raj & Ors. v. State of
Haryana & Ors. (1990) 2 SCC 653, Neelima Misra v. Harinder Kaur Paintal &
Ors. (1990) 2 SCC 746 and Sharma Transport v. Government of A.P & Ors.
(2002) 2 SCC 188 have simply followed, reiterated and applied the
principles settled by the pronouncements in the earlier mentioned cases.
24. We have thus far referred to decisions that are not subject specific
and settle the legal position in the context of varied fact situations. The
case at hand attracts the application of the principles that are
authoritatively settled by the decisions to which we have referred above.
Application of those principles, apart from the question, is whether
appointment of lawyers by the State Government simply signifies
professional engagement of those appointed or has any public element also
and if such appointments have a public element, whether the making of the
same can itself be the subject matter of judicial review. The extent and
nature of such review is an incidental question that would fall for
determination in the facts of the case before us. We shall presently advert
to those questions but before we do so we must state that we are not on
virgin ground. A few decisions to which we shall presently refer have
examined at considerable length, the very same questions and answered them
with considerable aplomb. We may gainfully refer to some of those
pronouncements if not all.
25. In Shrilekha Vidyarthi v. State of U.P. 1991 (1) SCC 212, which
happens to be the first of these decisions, this Court had an occasion to
examine whether Government Counsel in the districts are holders of an
‘office or post’ or such appointments are no more than professional
engagements like the one between a private client and his lawyer. That case
arose out of a challenge mounted by Government Counsel who were engaged
throughout the State of Uttar Pradesh to handle civil, revenue or criminal
cases and whose services were en masse terminated by the State only to be
replaced by fresh appointments on the basis of a new panel prepared for
that purpose and communicated to the District Magistrates concerned. On
behalf of the State, it was argued that the engagement of Government
Counsel was nothing but a professional engagement between a client and his
lawyer with no public element attached to it.
26. Rejecting that contention, this Court held that the appointment of
the District Government Counsel by the State Government was not merely a
professional engagement but had a public element attached to it. This
Court noted that Government Counsel were paid remuneration out of the
public exchequer and that having regard to Sections 24, 25 and 321 of the
Code of Criminal Procedure, the public prosecutors were entrusted the
responsibility of acting only in the interest of administration of justice.
In the case of Public Prosecutors, declared this Court, the additional
public element flowing from the statutory provisions in the Code of
Criminal Procedure, clothed the public prosecutors with the attribute of
the holders of a public office which cannot be whittled down by the
assertion that their engagement is purely professional between a client and
his lawyer with no public element attached to it. This was according to
this Court, sufficient to attract Article 14 and bring the question of
validity of the impugned circular within the scope of judicial review.
27. The decision in Shrilekha’s case (supra) is noteworthy for the
additional reason that the same held judicial review of State action
permissible even when the engagement of the Government counsel may be
contractual in nature. This Court observed :
“The State cannot be attributed the split personality of Dr. Jekyll and Mr.
Hyde in the contractual field so as to impress on it all the
characteristics of the State at the threshold while making a contract
requiring it to fulfil the obligation of Article 14 of the Constitution and
thereafter permitting it to cast off its garb of State to adorn the new
robe of a private body during the subsistence of the contract enabling it
to act arbitrarily subject only to the contractual obligations and remedies
flowing from it. It is really the nature of its personality as State which
is significant and must characterize all its actions, in whatever field,
and not the nature of function, contractual or otherwise, which is decisive
of the nature of scrutiny permitted for examining the validity of its act.
The requirement of Article 14 being the duty to act fairly, justly and
reasonably, there is nothing which militates against the concept of
requiring the State always to so act, even in contractual matters. There is
a basic difference between the acts of the State which must invariably be
in public interest and those of a private individual, engaged in similar
activities, being primarily for personal gain, which may or may not promote
public interest. Viewed in this manner, in which we find no conceptual
difficulty or anachronism, we find no reason why the requirement of Article
14 should not extend even in the sphere of contractual matters for
regulating the conduct of the State activity.”
28. Relying upon the decisions of this Court in Ramana Dayaram Shetty v.
International Airport Authority of India (1979) 3 SCC 489; Kasturi Lal
Lakshmi Reddy v. State of Jammu and Kashmir (1980) 4 SCC 1; Dwarkadas
Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC
293 and Mahabir Auto Stores and Others v. Indian Oil Corporation and others
(1990) 3 SCC 752, this Court held that the power of judicial review and the
sweep of Article 14 was wide enough to take within its fold the impugned
circular issued by the State in exercise of its executive powers
irrespective of the precise nature of appointment of the Government Counsel
in the districts or the rights, contractual or statutory, which the
appointees may have. This Court reiterated the well settled principle that
State action can survive only if it does not suffer from the vice of
arbitrariness which is the very essence of Article 14 of the Constitution
and Rule of law. This Court observed :
“It is now too well-settled that every State action, in order to survive,
must not be susceptible to the vice of arbitrariness which is the crux of
Article 14 of the Constitution and basic to the rule of law, the system
which governs us. Arbitrariness is the very negation of the rule of law.
Satisfaction of this basic test in every State action is sine qua non to
its validity and in this respect, the State cannot claim comparison with a
private individual even in the field of contract. This distinction between
the State and a private individual in the field of contract has to be borne
in the mind.”
29. Applying the above principle to the circular under challenge, this
Court held that arbitrariness was writ large on the same as it gave an
impression as if the State action was taken under a mistaken belief of
applicability of “spoils system” under our constitution. This Court held
that even though in the case of State, public interest should be the
guiding consideration while considering the suitability of the appointees
yet the impugned State action appeared to have been taken with the sole
object of terminating all existing appointments irrespective of the
subsistence or expiry of the tenure or the suitability of the incumbents.
The following passage from the judgment sums up the trend of the judicial
pronouncements which increasingly favour State activity even in contractual
matter being brought within the purview of judicial review:
“In our view, bringing the State activity in contractual matters also
within the purview of judicial review is inevitable and is a logical
corollary to the stage already reached in the decisions of this Court so
far. Having fortunately reached this point, we should not now turn back or
take a turn in a different direction or merely stop there.
In our opinion, two recent decisions in M/s Dwarkadas Marfatia and Sons,
(supra) and Mahabir Auto Stores & Ors.,(supra) also lead in the same
direction without saying so in clear terms. This appears to be also the
trend of the recent English decisions. It is in consonance with our
commitment to openness which implies scrutiny of every State action to
provide an effective check against arbitrariness and abuse of power. We
would much rather be wrong in saying so rather than be wrong in not saying
so. Non-arbitrariness, being a necessary concomitant of the rule of law, it
is imperative that all actions of every public functionary, in whatever
sphere, must be guided by reason and not humour, whim, caprice or personal
predilections of the persons entrusted with the task on behalf of the State
and exercise of all power must be for public good instead of being an abuse
of the power.”
(emphasis supplied)
30. In State of U.P. and Ors. etc. v. U.P. State Law Officers
Association and Ors. etc. (1994) 2 SCC 204, also law officers were removed
by the State Government, aggrieved whereof, the affected officers
approached the High Court contending, inter alia, that their removal was
against the principles of natural justice and that they could be removed
from their offices only for valid reasons. The High Court agreed with that
contention, allowed the petition and quashed the orders of removal. The
State assailed that order before this Court in which this Court examined
the issue from three different dimensions viz., (i) the nature of the legal
profession; (ii) the interest of public; and (iii) the modes of appointment
and removal.
31. While dealing with the nature of the legal profession, this Court
observed that legal profession was essentially a service-oriented
profession and that the relationship between the lawyer and his client is
one of trust and confidence. As a responsible officer of the court and an
important adjunct of the administration of justice, the lawyer also owes a
duty to the court as well as to the opposite side. He has to be fair to
ensure that justice is done. He demeans himself if he acts merely as a
mouthpiece of his client. Having said that, this Court noted the changed
profile of the legal profession because of the expansion of public sector
activities necessitating maintenance of a common panel of lawyers, some of
whom are in full-time employment of the government or public institutions
as their law officers.
32. On the question of public interest involved in the appointment of
lawyers, this Court unequivocally declared that the government or the
public body represents public interest and whoever is in charge of running
their affairs is no more than a trustee or a custodian of public interest.
Protection of public interests in the best possible manner is their primary
duty. It follows that public bodies are under an obligation to the society
to take the best possible steps to safeguard such interests. That
obligation in turn casts on them the duty to engage the most competent
servants, agents, advisers etc. Even in the matter of selection of
lawyers, those who are running the government or the public bodies are
under an obligation to make earnest efforts to select the best from the
available lot. This is more so because the claims made by and/or against
the public bodies are monetarily substantial and socially crucial with far-
reaching consequences.
33. This Court while dealing with the third dimension touching the mode
of appointment of lawyers declared that in conformity with the obligation
cast upon them those handling the affairs of the State are duty bound to
select the most meritorious, whatever the method adopted for such selection
and appointment may be. It must be shown that a search for the meritorious
was undertaken and that appointments were made only on the basis of the
merit and not for any other consideration. The following passage is in
this regard apposite.
“18. The mode of appointment of lawyers for the public bodies, therefore,
has to be in conformity with the obligation cast on them to select the most
meritorious. An open invitation to the lawyers to compete for the posts is
by far the best mode of such selection. But sometimes the best may not
compete or a competent candidate may not be available from among the
competitors. In such circumstances, the public bodies may resort to other
methods such as inviting and appointing the best available, although he may
not have applied for the post. Whatever the method adopted, it must be
shown that the search for the meritorious was undertaken and the
appointments were made only on the basis of the merit and not for any other
consideration.”
(emphasis supplied)
34. In State of U.P. and Anr. v Johri Mal (2004) 4 SCC 714 a three-Judge
Bench of this Court had an occasion to deal with somewhat similar question
that arose once again in relation to appointment of government lawyers in
the State of U.P. This Court reviewed the decisions earlier delivered and
ruled that public interest would be safeguarded only when good and
competent counsel are appointed by the State. No such appointments should,
declared this Court, be made for pursuing a political purpose or for giving
some undue advantage to any particular section. The State should replace
an efficient, honest and competent lawyer only when it is in a position to
appoint a more competent lawyer in his place, observed this Court. The
following passage is apposite in this regard:
44. Only when good and competent counsel are appointed by the State, the
public interest would be safeguarded. The State while appointing the public
prosecutors must bear in mind that for the purpose of upholding the rule of
law, good administration of justice is imperative which in turn would have
a direct impact on sustenance of democracy. No appointment of Public
Prosecutors or District Counsel should, thus, be made either for pursuing a
political purpose or for giving some undue advantage to a section of
people. Retention of its counsel by the State must be weighed on the scale
of public interest. The State should replace an efficient, honest and
competent lawyer, inter alia, when it is in a position to appoint a more
competent lawyer. In such an event, even a good performance by a lawyer may
not be of much importance.”
(emphasis supplied)
35. While dealing with the nature of office the government counsel hold,
this Court declared that the State Government Counsel holds an office of
great importance. They are not only officers of the court but also the
representatives of the State and that courts repose a great deal of
confidence in them. They are supposed to render independent, fearless and
non-partisan views before the court irrespective of the result of
litigation which may ensue. So also the public prosecutors have great
responsibility. They are required to perform statutory duties independently
having regard to various provisions contained in the Code of Criminal
Procedure. The State Government counsel represents the State and thereby
the interest of the general public before a court of law. This requires
that government counsel have character, competence, sufficient experience
as also standing at the Bar. The need for employing meritorious and
competent persons to maintain the standard of the high office cannot be
minimized, observed the court, particularly, when the holders of the post
have a public duty to perform. The Court also expressed anguish over the
fact that in certain cases the recommendations are made by the District
Magistrate having regard to the political affinity of the lawyers to the
party in power and that State is not expected to rescind the appointments
with the change in the government because a new party has taken over charge
of the Government. This Court also recognized the age-old tradition of
appointing the District Government Counsel on the basis of the
recommendations of the District Collector in consultation with the District
Judge. The fact that the District Judge, who is consulted while making
such appointment knows the merit, competence and capability of the lawyer
concerned, was also recognized by the Court.
36. The development of law in this country has taken strides when it
comes to interpreting Articles 14 and 16 and their sweep. Recognition of
power exercisable by the functionaries of the State as a trust which will
stand discharged only if the power is exercised in public interest is an
important milestone just as recognition of the Court’s power of judicial
review to be wide enough to strike at and annul any State action that is
arbitrary, unguided, whimsical, unfair or discriminatory. Seen as important
dimensions of the rule of law by which we swear the law as it stands today
has banished from our system unguided and uncanalised or arbitrary
discretion even in matters that were till recently considered to be within
the legitimate sphere of a public functionary as a repository of Executive
Power. Those exercising power for public good are now accountable for their
action, which must survive scrutiny or be annulled on the first principle
that the exercise was not for public good in that the same was either
malafide, unfair, unreasonable or discriminatory. Extension of the
principle even to contractual matters or matters like engagement of law
officers is symbolic of the lowering of the threshold of tolerance for what
is unfair, unreasonable or arbitrary. The expanding horizons of the
jurisprudence on the subject both in terms of interpretation of Article 14
of the Constitution as also the court’s willingness to entertain pleas for
judicial review is a heartening development on the judicial landscape that
will disentitle exercise of power by those vested with it as also empower
those affected by such power to have it reversed if such reversal is
otherwise merited.
37. The question whether a fair, reasonable and non-discriminatory method
of selection should or should not be adopted can be viewed from another
angle also equally if not more important than the need for preventing any
infringement of Article 14. The State counsel appears for the State
Government or for public bodies who together constitute the single largest
litigant in our Court system. Statistics show that nearly 80% of litigation
pending in the courts today has State or one of its instrumentalities as a
party to it. State Counsel/counsel appointed by public bodies thus
represent the largest single litigant or group engaged in litigation. It is
also undeniable that for a fair, quick and satisfactory adjudication of a
cause, the assistance which the Court gets from the Bar is extremely
important. It is at times said that the quality of judgment or justice
administered by the courts is directly proportionate to the quality of
assistance that the courts get from the Counsel appearing in a case. Our
system of administration of justice is so modelled that the ability of the
lawyers appearing in the cause to present the cases of their respective
clients assumes considerable importance. Poor assistance at the Bar by
counsel who are either not sufficiently equipped in scholarship, experience
or commitment is bound to adversely affect the task of administration of
justice by the Court. Apart from adversely affecting the public interest
which State counsel are supposed to protect, poor quality of assistance
rendered to the courts by State Counsel can affect the higher value of
justice itself. A fair, reasonable or non-discriminatory process of
appointment of State Counsel is not thus demanded only by the rule of law
and its intolerance towards arbitrariness but also by reason of the
compelling need for doing complete justice which the Courts are obliged to
do in each and every cause. The States cannot in the discharge of their
public duty and power to select and appoint State counsel disregard either
the guarantee contained in Article 14 against non-arbitrariness or the duty
to protect public interest by picking up the best among those available and
willing to work nor can the States by their action frustrate, delay or
negate the judicial process of administration of justice which so heavily
banks upon the assistance rendered by the members of the Bar.
38. To sum up, the following propositions are legally unexceptionable:
The Government and so also all public bodies are trustees of the power
vested in them.
Discharge of the trust reposed in them in the best possible manner is their
primary duty.
The power to engage, employ or recruit servants, agents, advisors and
representatives must like any other power be exercised in a fair,
reasonable, non-discriminatory and objective manner.
The duty to act in a fair, reasonable, non-discriminatory and objective
manner is a facet of the Rule of Law in a constitutional democracy like
ours.
An action that is arbitrary has no place in a polity governed by Rule of
Law apart from being offensive to the equality clause guaranteed by Article
14 of the Constitution of India.
Appointment of Government counsel at the district level and equally so at
the High Court level, is not just a professional engagement, but such
appointments have a “public element” attached to them.
Appointment of Government Counsel must like the discharge of any other
function by the Government and public bodies, be only in public interest
unaffected by any political or other extraneous considerations.
The government and public bodies are under an obligation to engage the most
competent of the lawyers to represent them in the Courts for it is only
when those appointed are professionally competent that public interest can
be protected in the Courts.
The Government and public bodies are free to choose the method for
selecting the best lawyers but any such selection and appointment process
must demonstrate that a search for the meritorious was undertaken and that
the process was unaffected by any extraneous considerations.
No lawyer has a right to be appointed as a State/Government counsel or as
Public Prosecutor at any level, nor is there any vested right to claim an
extension in the term for which he/she is initially appointed. But all such
candidates can offer themselves for appointment, re-appointment or
extension in which event their claims can and ought to be considered on
their merit, uninfluenced by any political or other extraneous
considerations.
Appointments made in an arbitrary fashion, without any transparent method
of selection or for political considerations will be amenable to judicial
review and liable to be quashed.
Judicial review of any such appointments will, however, be limited to
examining whether the process is affected by any illegality, irregularity
or perversity/irrationality. The Court exercising the power of judicial
review will not sit in appeal to reassess the merit of the candidates, so
long as the method of appointment adopted by the competent authority does
not suffer from any infirmity.
39. Question No.3 is accordingly answered in the affirmative.
Re: Question No.4
40. What then are the ways out of the situation which has been as a
governmental fiefdom that is immune to judicial review and correction? The
Law Commission has, it is heartening to note, addressed a similar question
at some length and made meaningful recommendations in its 197th Report. The
Commission while examining issues concerning appointment of public
prosecutors observed:
“The Sessions Judge who has knowledge of the caliber, experience and
character of lawyers practicing in the Sessions Courts is well suited to
suggest the best names of lawyers so that the interests of prosecution, the
interests of the accused are fully taken care of. This being the logic
behind the provision for consultation, any amendment by the States deleting
the check on arbitrary appointments of Public Prosecutors, will be
violative of Art. 14 of the Constitution. The fundamental point – which has
to be remembered – is that any law made by the Centre or State Legislature
in regard to appointment of Public Prosecutors must conform to the
principles governing administration of criminal justice in which the public
prosecutor has an independent and special role as stated in Chapter II . In
as much as the Public Prosecutor is a ‘limb of the judicial process’ and
‘an officer of Court’ as stated by the 18 Supreme Court (see Chapter II),
any method of appointment which sacrifices the quality of the prosecution
or which enables State Governments to make appointments at their choice
without proper screening, proper assessment of the qualifications,
experience or integrity of the individuals, be they the Public Prosecutors
selected from the Bar or appointed from among the Prosecuting Officers,
will not stand the test of non-arbitrariness under Art. 14 of the
Constitution of India. The scheme must provide for appointing Public
Prosecutors who shall bear all the qualities mentioned in Chapter II”.
(emphasis supplied)
41. Dealing with the appointment procedure of Public Prosecutors and the
need to provide for proper checks as also the validity of any state
amendment to section 24, removing these checks from the scheme of Section
24, the Commission observed:
“Appointment procedure laid down in any legislation cannot give arbitrary
discretion to State Governments. There must be proper checks in the matter
of appointment of Public Prosecutors/Addl. Public Prosecutors in 22 the
Sessions Court so that they can be efficient in their functioning,
objective and independent of the Police and the Executive. Any scheme of
appointments without proper checks will be violative of Art. 14 of the
Constitution of India. If the central legislation expressly requires
consultation with Sessions Judge and that he should assess merit,
experience and good character as a necessary condition for appointment as
Public Prosecutors under sec. 24(4), then any State Amendment which deletes
the provision relating to consultation with the Sessions Judge and to the
above qualities required of the appointee, then such deletion by the State
Legislature amounts giving a licence for arbitrary appointments and will
violate Art. 14. In such cases, assent of the President to the State
Amendment can be justifiably refused.”
(emphasis supplied)
42. The Commission unequivocally supported the need for consultation with
the Sessions Judge and with the High Court, as the case may be, for
appointment of the public prosecutors for those Courts in the following
words:
“We may reiterate that, so far as sec. 24(4) is concerned, the Public
Prosecutor’s selection and appointment at the level of the Districts and
the High Court cannot be left to the sweet will of the Government. Such a
procedure has the danger of persons without adequate experience of
conducting Sessions cases, or who lack in adequate knowledge of criminal
law being appointed. There is even the likelihood of some of such
appointees not maintaining the highest standards of conduct expected of a
Public Prosecutor. Thus, while consultation under sec. 24(4) with the
Sessions Judge cannot be dispensed with, we propose some extra provisions
in sec. 24(4) requiring that the Session Judge must give importance to
experience in Sessions cases, merit and integrity. If such a provision is
dispensed with by State Legislatures, obviously such amendments will
violate Art. 14. This is so far as the posts of Public Prosecutor and 50%
of posts of Addl. Public Prosecutor in the District are concerned.”
(emphasis supplied)
43. Consultation with the Sessions Judge for a Public Prosecutor in the
District judiciary and with the High Court for one in the High Court is
statutorily prescribed because of the importance of the appointment and the
significance of the opinion of the Courts where the appointee has to work,
as to his or her capacity and professional ability. The statute does not
admit of an appointment in disregard of the requirement of consultation.
The Law Commission has, therefore, rightly held the consultative process to
be a check on the power of appointment which cannot be left unregulated or
uncontrolled, lest a person not suited or competent enough gets appointed
to the position for other reasons or considerations. Consultation, in that
sense, lends reassurance as to the professional ability and suitability of
the appointee. The Commission has on that premise placed a question mark on
the validity of State amendment that deletes from Section 24 of the Code of
Criminal Procedure Code the need for consultation with the Sessions Judge
or the High Court.
44. Taking a cue from the provisions of Section 24, we are inclined to
hold that what serves as a check on the power of the Government to appoint
a Public Prosecutor can as well be a check on the appointment of the State
Counsel also. That is because, while the Public Prosecutor’s power under
the Code of Criminal Procedure Code gives him a distinctive position, the
office of a State Counsel, in matters other than criminal, are no less
important. A State Counsel by whatever designation called, appears in
important civil and constitutional matters, service and tax matters and
every other matter where substantial stakes are involved or matters of
grave and substantial importance at times touching public policy and
security of State are involved. To treat such matters to be inconsequential
or insignificant is to trivialise the role and position of a State Counsel
at times described as additional and even Senior Additional Advocate
General. What holds good for appointment of a Public Prosecutor as a check
on arbitrary exercise of power must, therefore, act as a check on the
State’s power to appoint a State Counsel as well especially in situations
where the appointment is unregulated by any constitutional or statutory
provision. Such a requirement is implicit in the appointing power of the
State which power is in trust with the government or the public body to be
exercised only to promote public interest. The power cannot be exercised
arbitrarily, whimsically or in an un-canalised manner for any such exercise
will fall foul of Article 14 of the Constitution of India and resultantly
Rule of law to which the country is committed.
45. We have while dealing with question No.1 held that no lawyer has a
right to be appointed as State Government counsel or as public prosecutor
at any level nor does he have a vested right to claim extension in the term
for which he/she is initially appointed. We have also held that all
candidates who are eligible for any such appointment can offer themselves
for re-appointment or extension in which event their claims can and ought
to be considered on their merit uninfluenced by any political or other
extraneous consideration. It follows that even the writ-petitioners
cannot claim appointment or extension as a matter of right. They can at
best claim consideration for any such appointment or extension upon expiry
of their respective terms. Such consideration shall, however, have to be
in accordance with the norms settled for such appointments and on the basis
of their inter se merit, suitability and performance if they have already
worked as State counsel. To that extent, therefore, there is no difficulty.
The question is what should be the mechanism for such consideration. There
are in that regard two major aspects that need to be kept in mind. The
first is the need for assessment and requirement of the State Governments
having regard to the workload in different courts. As noticed earlier,
appointments appear to have been made without any realistic assessment of
the need for State counsel at different levels. Absence of a proper
assessment of the requirement for State counsel leads to situations that
have been adversely commented upon by the CAG in his report to which we
have made a reference in the earlier part of this judgment. The problem
gets compounded by those in power adding to the strength of government
advocates not because they are required but because such appointments serve
the object of appeasement or private benevolence shown to those who qualify
for the same. The CAG has in that view rightly observed that there ought
to be a proper assessment of the need before such appointments are made.
46. The second aspect is about the process of selection and assessment of
merit of the candidates by a credible process. This process can be
primarily left to the State Government who can appoint a Committee of
officers to carry out the same. It will be useful if the Committee of
officers has the Secretary to Government, Law Department, who is generally
a judicial officer on deputation with the Government as its Member-
Secretary. The Committee can even invite applications from eligible
candidates for different positions. The conditions of eligibility for
appointment can be left to the Government or the Committee depending upon
the nature and the extent of work which the appointees may be effected to
handle. The process and selection of appointment would be fair and
reasonable, transparent and credible if the Government or the Committee as
the case may be also stipulates the norms for assessment of merit and
suitability.
47. The third stage of the process of selection and appointment shall in
the absence of any statutory provisions regulating such appointments
involve consultation with the District & Sessions Judge if the appointment
is at the district level and the High Court if the appointment is for cases
conducted before the High Court. It would, in our opinion, be appropriate
and in keeping with the demands of transparency, objectivity and fairness
if after assessment and finalisation of the selection process a panel is
sent to the Chief Justice of the High Court concerned for his views on the
subject. The Chief Justice could constitute a Committee of Judges to review
the names recommended for appointment and offer his views in regard to
professional competence and suitability of candidates for such
appointments. Appointments made after such a consultative process would
inspire confidence and prevent any arbitrariness. The same procedure could
be followed where candidates are granted extension in their terms of
appointment in which case the Committee appointed by the government and
that constituted by the Chief Justice could also look into the performance
of the candidates during the period they have worked as State counsel.
48. In the result, therefore, we dispose of Transfer Petition No.1073 of
2014 and Civil Appeal arising out of SLP(C) No.8416/2016 (CC No.5470 of
2014) with the following directions:
The States of Punjab and Haryana shall undertake a realistic assessment of
their need in each category in which State counsel are proposed to be
appointed.
Based on the assessment so made, the States shall constitute a Selection
Committee with such number of officers as the State Government may
determine to select suitable candidates for appointment as State counsel.
The Secretary, Department of Law in each State shall be the Member-
Secretary of the Selection Committee.
The Committee shall on the basis of norms and criteria which the Government
concerned may formulate and in the absence of any such norms, on the basis
of norms and criteria which the Committee may themselves formulate conduct
selection of law officers for the State and submit a panel of names to the
Chief Justice of Punjab and Haryana who may set up a Committee of Judges to
review the panel and make recommendations to the Chief Justice. The Chief
Justice may based on any such recommendations record his views regarding
suitability of the candidates included in the panel. The Government shall
then be free to appoint the candidates having regard to the views expressed
by the Chief Justice regarding their merit and suitability. The procedure
for assessment of merit of the candidates and consideration by the High
Court will apply in all cases where the candidates are already working as
State counsel but are being given an extension in the term of their
appointment. Having said that we must hasten to add that we are not
interfering with the appointments already made in the States of Punjab and
Haryana which can continue to remain valid for the period the same has been
made but any extension or re-appointment shall go through the process
indicated by us in the foregoing paragraphs.
The writ-petitioners shall also be free to offer themselves for
consideration before the Committee appointed by the State Government in
which event their claims may also be considered having regard to their
merits, suitability and performance as State counsel for the period they
have worked as State counsel.
We make it clear that nothing said by us in the foregoing paragraphs of
this judgment shall affect the right of the State Governments to appoint
any person eligible for such appointment as the Advocate General of the
State in terms of Article 165 of the Constitution of India.
We further clarify that although we are primarily concerned with the
procedure regarding selection and appointment of law officers in the States
of Punjab and Haryana and although we have confined our directions to the
said two States only yet other States would do well to reform their system
of selection and appointment to make the same more transparent, fair and
objective if necessary by amending the relevant LR Manuals/Rules and
Regulations on the subject.
49. Since the issues that fell for determination in the Writ Petition
No.2000 of 2011 also stand comprehensively determined by this order, the
said petition shall also stand disposed of in the above terms. The parties
are left to bear their own costs.
……………………… CJI. (T.S. THAKUR)
………………………….J.(KURIAN JOSEPH)
New Delhi
March 30, 2016
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