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Friday, April 1, 2016

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-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.

                                             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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