2016 (3) TMI 1102 - SC - Indian Laws

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 - 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. - 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.

Issues Involved:
1. Realistic assessment of the requirement for Law Officers.
2. Formulation of a scheme, policy, norms, or standards for appointing Law Officers.
3. Necessity for fair, reasonable, non-discriminatory, and objective appointments of Law Officers.
4. Way forward if the answers to the above issues are negative.

Issue-Wise Detailed Analysis:

Re: Question No.1
The Supreme Court found that neither Punjab nor Haryana made a realistic assessment of their requirement before appointing Law Officers. The appointments were made on an ad hoc basis without correlating the workload in the courts to the number of Law Officers appointed. The Comptroller and Auditor General (CAG) report for Haryana highlighted that more than half of the appointed Law Officers were without work, resulting in idle salary payments in crores. The CAG recommended a realistic assessment of the number of Law Officers required based on the workload and a transparent selection process. The Court emphasized that a fair and objective system of appointment requires a realistic assessment of the need to avoid appointments made for political aggrandizement or personal benevolence. Question No.1 was answered in the negative.

Re: Question No.2
The Court noted that neither Punjab nor Haryana had any definite procedure, statutory or otherwise, for selecting practicing advocates for appointment as Law Officers. The appointments were made based on the recommendations of the Advocate General or through "discreet enquiries" by the government. There was no Selection or Search Committee, and the High Court was not consulted before finalizing the appointments. The affidavits filed by the States did not indicate any objective method to ensure fair selection. The Court held that appointments made to offices remunerated from the public exchequer must be regulated to ensure fairness and objectivity. The States' practice of making appointments without a transparent process runs contrary to the principles of fairness and equality of opportunity. Question No.2 was also answered in the negative.

Re: Question No.3
The Court reiterated that all public bodies, including the government, are trustees of the power vested in them and must exercise that power in a fair, reasonable, non-discriminatory, and objective manner. Article 14 of the Constitution strikes at arbitrariness in every State action. The Court referred to several precedents, including S.G. Jaisinghani v. Union of India, E.P. Royappa v. State of Tamil Nadu, and Maneka Gandhi v. Union of India, to emphasize that arbitrariness has no place in a polity governed by the rule of law. The Court held that the appointment of Government Counsel is not merely a professional engagement but has a public element attached to it, attracting Article 14 and subjecting the appointments to judicial review. The Court emphasized that the process of selecting the best lawyers must be transparent and credible, and any arbitrary appointments would be amenable to judicial review. Question No.3 was answered in the affirmative.

Re: Question No.4
The Court proposed a way forward to address the issues identified. It directed the States of Punjab and Haryana to:
1. Undertake a realistic assessment of their need for Law Officers.
2. Constitute a Selection Committee to select suitable candidates for appointment as State counsel, with the Secretary, Department of Law, as the Member-Secretary.
3. Formulate norms and criteria for the selection process, invite applications, and conduct the selection based on merit and suitability.
4. Consult the Chief Justice of the High Court for appointments at the High Court level and the District & Sessions Judge for district-level appointments.
5. Ensure that the appointments are made based on professional competence and suitability, with the Chief Justice's views considered.
6. Allow the writ-petitioners to offer themselves for consideration before the Committee.

The Court clarified that its directions primarily concerned Punjab and Haryana, but other States should also reform their selection and appointment systems to make them transparent, fair, and objective. The Court disposed of the Transfer Petition and Civil Appeal with these directions and left the parties to bear their own costs.

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