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2016 (3) TMI 1102
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....rd 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 appointme....
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.... 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 ....
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.... 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 Rs. 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, Administ....
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....y 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 na....
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....icited 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:- 1)What is the procedure followed by the State Government for selecting practising Advocates for appointment as Law Officers for the State of Punjab? 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? 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. 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? 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. 12. We had, by a subsequent order dated 2nd September, 2015 passed in Transferred Petition No.1073 of 2015, aske....
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....ed 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.No. Designation No. of Law Officers 1. Additional Advocate General, Punjab 74 2. Senior Deputy Advocate General, Punjab 05 3. Deputy Advocate General, Punjab 40 4. Assistant Advocate General, Punjab 55 5. Adv....
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....scribed 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.....
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....essment of merit will be selfdefeating. 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....
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....pt 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 ....
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....aged 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 attrib....
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....ay (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.....
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....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 l....
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.... 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 impac....
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....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....
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....use. 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: (i) The Government and so also all public bodies are trustees of the power vested in them. (ii) Discharge of the trust reposed in them in the best possible manner is their primary duty. (iii) 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. (iv) The duty to act in a fair, reasonable, nondiscriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours. (v) An action that is arbitrary has no place in a polity governed by Rule of Law apart....
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....tion 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 prosecut....
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....dequate 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 consultativ....
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....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 as....
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....s 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: (1) 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. (2) 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. (3) The Committee shall on the basis of norms and criteria which the Governmen....