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TMI Blog2016 (3) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... KURIAN JOSEPH JJ. 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 ₹ 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. Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices 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, contendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Court holidays and vacations) Average number of Los without any work on particular days of the month Percentage of Los who remained without any work Number of Los work for complete month Idle salary paid to LOs without work for wholesale month (in) December 2009 98 11 54 55 20 10,33,872 August 2010 137 21 70 51 27 19,40,983 November 2010 151 18 100 66 42 30,88,534 March 2011 153 22 97 63 58 42,21,554 November 2011 169 21 123 73 63 49,51,868 January 2012 179 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fairs 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 farreaching 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent, 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 perf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsed if such reversal is otherwise merited. 37. The question whether a fair, reasonable and nondiscriminatory 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in public interest unaffected by any political or other extraneous considerations. (viii) 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. (ix) 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. (x) 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. (xi) Appointments made in an arbitrary fashion, without any transparent method of selection or for political ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntments 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 stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord 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. (4) 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. (5) We make it clear that nothing said by us in the foregoing paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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