Back
2007 Supreme(SC) 512
2007(3) Supreme 562
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Dr. Arijit Pasayat and D.K. Jain, JJ.
Supreme Court Bar Association — Petitioner
versus
Union of India & Ors. — Respondents
Writ Petition (Civil) No. 27 of 2007
Decided on 13-4-2007
Counsel for the Parties :
For the Appearing Parties : Gopal Subramanium, ASG., Aruneshwar Gupta (Raj.), J.S. Attri (H.P.), Manjit Singh, Ms. Rachna Srivastava, ASSG., M.N. Krishnamani, Sarup Singh, Ratnakar Dash, Sr. Advocates, K.C. Kaushik, Rahul Kaushik, Soumyajit Pani, Sunil Kr. Jain, Gaurav Agrawal, P. Parmeswaran, Ashok Bhan, Ms. Varuna Bhandari Gugnani, D.S. Mahra, Sibo Sankar Mishra, Pratap Sahani, N.K. Neeraj, Kuldeep Singh, R.K. Pandey, Arun K. Sinha, Vikrant Singh Bais, B.S. Banthia, Ms. A. Subhashini, Naveen Kumar Singh, Mukul Sood, Shashwat Gupta, Anis Suhrawardy, Ms. Anitha Shenoy, Ms. Suparna Srivastava, Ms. Nidhi Minocha, Rajesh Srivastava, Riku Sharma (for M/s Corporate Law Group), K.N. Madhusoodhanan, R. Satish, Gopal Singh, Anukul Raj, Anil Shrivastava, Tara Chandra Sharma, Ms. Neelam Sharma, Rajiv Sharma, Irshad Ahmad, Ms. D. Bharthi Reddy, P. Vinay Kumar, Ms. Sneha Bhaskaran, Harikesh Singh, T.V. George, Kh. Nobin Singh, S. Biswajit Meitei, David Rao, Ms. Hemantika Wahi, Ms. Shivangi, J.K. Bhatia, S.S. Shinde, V.N. Raghupathy, A. Mariaputham, Ms. Aruna Mathur (for M/s Arputham, Aruna & Co.), Ranjan Mukherjee, Gopal Singh, P.V. Dinesh, Ms. Meenakshi Arora and Ajit Kumar Sinha, Advocates.
IMPORTANT POINT
For appointment as Chairman of the concerned State Legal Service Authority, normal rule is that a sitting Judge should be appointed as the Chairman and only when unusual difficulties exist, a retired Judge may be appointed. That has to be exception and not the rule.
Headnote:(i) Legal Services Authorities Act, 1987 — Section 6 — Appointment of a retired Judge as Chairman of concerned State Legal Service Authority in different States — Challenged — Allegations of favouritism — Serving or retired Judge of the High Court can be nominated by the Governor in consultation with Chief Justice of High Court — Normal rule is that a sitting Judge should be appointed and only when unusual difficulties exist, a retired Judge may be appointed — In some states retired Judges have been appointed — Writ petitions filed by the Supreme Court Bar Association alleging scope of favouritism and preferential treatment — Facts on record revealing lack of transparency in the matter — Reasons indicate for taking a departure from the earlier practice of appointing sitting Judges also reveals some interesting factors — Action of Chief Justice shown as not principle oriented but was person oriented — There is ample scope for favouritism in appointment of a retired Judge — Concerned State Governments are directed to reconsider the matter with the consultation of the Chief Justice of the concerned State.
Held : Though the allegation of any preferential treatment has been denied in the affidavits of all States, we would like to illustrate the State of Orissa’s case. The fact situation is quite disturbing. This Court directed production of file relating to appointment of the retired Judge as Executive Chairman. The Registrar of the Orissa High Court in a communication to this Court stated that there was no file available in the High Court and he had collected copies of certain documents from the Principal Secretary of the Chief Justice of the High Court. (Para 5)
Action of the then Chief Justice was not principle-oriented but was person-oriented. This is what is the main grievance of the writ petitioner. Surprisingly, even in the letter addressed to the Government, the then Chief Justice had suggested the facilities to be provided to the Judge concerned. This is not required as a part of the consultation process. Therefore, as rightly contended by the writ petitioner, there is ample scope for favouritism in appointment of a retired Judge. (Para 7)
In some cases earlier a sitting Judge was functioning as the Chairman of the State Legal Service Authority. We could not find any reason as to why a departure from the long standing practice of appointing a sitting Judge as the Chairman of the State Legal Service Authority was departed from. (Para 8)
Another disturbing feature is that some of the State Governments have asked for panel of names to be given. Calling for such panel in essence results in substitution of objectivity with subjectivity. This is to be avoided. Though in terms of Section 6(2) retired Judge can be appointed, but that shall have to be in exceptional circumstances. The advantage of having a sitting Judge as the Chairman far outweigh the disadvantages, some of which have been highlighted by learned counsel for the States where retired Judges are appointed. Therefore, normal rule is that a sitting Judge should be appointed as the Chairman and only when unusual difficulties exist, a retired Judge may be appointed. That has to be the exception and not the rule. (Para 11)
JUDGMENT
Dr. Arijit Pasayat, J. — This petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution’) has been filed by the Supreme Court Bar Association raising points of considerable importance. It is the case of the writ petitioner that appointment of a retired Judge as Chairman of the concerned State Legal Service Authority in different States falls foul of the desired legislative effect. It is stated that appointment of retired Judges has the effect of stalling the effectiveness in functioning of the State Legal Service Authorities. With reference to Section 6(2) of the Legal Services Authorities Act, 1987 (in short the ‘Act’), it is pointed that the serving or retired Judge of the High Court can be nominated by the Governor in consultation with the Chief Justice of the High Court. The writ petitioner has pointed out that under the Act the State Government is required to constitute a body to be called the Legal Service Authority of the State to exercise the powers and/or assigned to State Authority under the Act. Sub-section (2) of Section 6 provides that the State Authority shall consist of the Chief Justice of the High Court who shall be the Patron-in-Chief and a Judge of the High Court to be nominated by the Governor in consultation of the Chief Justice of High Court who shall be the Executive Chairman.
2. Several difficulties encountered in case a retired Judge is appointed as a Chairman, have been highlighted by the writ-petitioner. Most of the States and the Union Territories have accepted the genuineness of the problems highlighted in the writ petition. It is to be noted that except four States i.e. West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other States and the Union Territories a sitting Judge is functioning as Executive Chairman. In the State of Orissa prior to passing of the impugned order dated 12.1.2007 a retired Judge had been appointed as the Executive Chairman. In line with the order dated 12.1.2007 presently in the State a retired Judge is functioning as the Executive Chairman. One of the main grievances of the writ petitioner-association is that there is scope for favouritism in case a retired Judge is appointed in preference to a sitting Judge. Several instances have been highlighted. In its affidavit filed by the National Legal Service Authority (in short ‘NALSA’), it has been accepted that the functioning of the State Legal Service Authorities where retired Judges have been appointed as Chairmen is not satisfactory. The averments in the writ petition which need to be highlighted is as follows:
“Whereas in regard to the State Legal Authority alone, strangely, the head need not be a sitting High Court Judge. The relevant provisions of the Act regarding State Legal Service Authority contained in Section 6(2) are as follows:
“(2) A State authority shall consist of–
(a) the Chief Justice of the High Court who shall be the Patron-in-Chief;
(b) A serving or retired Judge of the High Court, nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and
(c) such other members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by the Government in consultation with the Chief Justice of the High court.”
The Authority could be headed by a retired judge of the High Court. For a retired judge, the Act does not prescribe any upper age-limit. In regard to every other Tribunal, the Act concerned itself prescribes the upper age limit as 68 years or 5 years tenure. This Act alone does not prescribe any age limit, or a limited tenure, when it comes to a retired judge. For a sitting judge all limitations as to age etc. come automatically since he would hold the post ex officio.
The position of the chairperson of Legal Services Authority at State Level is very crucial. A sitting judge will be a far better person and he can exercise his powers more effectively compare
