2016 Supreme(SC) 256

SUPREME COURT OF INDIA
T.S. THAKUR, CJI., KURIAN JOSEPH, J.
State of Punjab & Anr. – Appellants
Versus
Brijeshwar Singh Chahal & Anr. – Respondents
Civil Appeal No. 3194 of 2016 (Arising out of SLP(C) No. 8416/2016 @ CC No. 5470 of 2014)
With
Pardeep Kumar Rapria – Appellant
Versus
State of Haryana and Ors. – Respondents
T.P. (C) No. 1073 of 2015
Decided on : 30-03-2016

IMPORTANT POINTS
Appointment of Law officers who are heavily remunerated from the public exchequer must be regulated.
Appointment of law officers must be fair and reasonable, transparent and credible.
Appointment of law officer, even though contractual, is amenable to judicial review.
Directions given for regulating appointment of law officers.

Headnote:(a) Appointment of Law Officers – Present practice – On 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 ought to be a fair and realistic assessment of the requirement – Otherwise 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 – Present practice needs to be halted. (Para 8, 9)

       (b) Appointment of Law Officers – Law officers discharging important public function and affecting State interest and quality of justice – Law officers heavily remunerated from the public exchequer but appointments unregulated – Contention that State not accountable for engagement of State counsel and the engagement being only professional and/or contractual not questionable, not acceptable – Reform of prevalent system long overdue. (Para 15)

       (c) Appointment of Law Officers – State action – Must not be arbitrary – Article 14, Constitution of India – Absence of arbitrary power first essential of “Rule of Law” – Applies to appointment of Law Officers. (Para 16, 17)

       AIR 1967 SC 1427; (1974) 4 SCC 3; (1978) 2 SCR 621; AIR 1979 SC 1628; (1983) 1 SCC 305; (1989) 3 SCC 293; (1990) 2 SCC 653; (1990) 2 SCC 746; (2002) 2 SCC 188 – Relied upon

       1951 342 US 98:96 Law Ed 113 – Referred

       (d) Appointment of Law Officers – Not only professional engagement – Public element also attached – Sections 24, 25 and 321, Code of Criminal Procedure, 1973 – Such appointment amenable to judicial review, even if made on contractual basis – State duty bound to select best from the Bar as Law Officers to safeguard public interest – Such appointments should not be made for pursuing a political purpose or for giving some undue advantage to any particular section. (Para 26, 31, 32, 33, 34)

       (1991) 1 SCC 212; (1994) 2 SCC 204; (2004) 4 SCC 714 – Relied upon

       (1979) 3 SCC 489; (1980) 4 SCC 1; (1989) 3 SCC 293; (1990) 3 SCC 752 – Referred

       (e) Law Officers – Nature of office – Of great importance – Officers of Court as well representative of State – Required to perform statutory duties independently – Appointment amenable to judicial review – Article 14, Constitution of India. (Para 35, 36, 37, 38)

       (f) Appointment of Law Officers/ Public Prosecutors – Section 24, Code of Criminal Procedure, 1973 – Consultation with District judiciary/High Court – A check on arbitrariness – No lawyer has right to be appointed law officer or vested right to extension – Assessment and requirement of Law officers having regard to the workload in different courts required. (Para 43, 44, 45, 47)

       (g) Appointment of Law Officers – Process – Left to State Government – May constitute a selection committee – Eligibility conditions need to be framed – Committee can invite applications from eligible lawyers – Process and selection of appointment should be fair and reasonable, transparent and credible – Directions given. (Para 46, 48)

       Facts of the case:

       The question in this appeal 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.

       Petitioner No.1 was initially appointed as an Assistant Advocate General vide order dated 23rd April, 2002 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 appointed as Deputy Advocate General by an order dated 11th January, 2008. His tenure was later extended upto the year 2011-2012.

       Petitioner No.2 was similarly appointed as an Assistant Advocate General on contract basis and then to the post of Deputy Advocate General. The respondents made a grievance against their non-absorption on regular basis while Smt. Sonu Chahal-respondent No.3 was appointed as Senior Deputy Advocate General on contract basis. The writ petitioner/respondent No.1 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. 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 nondiscriminatory basis of those working as Law Officers of the State.

       A Single Judge of the High Court stayed the termination of the services of petitioner No.1.

       The writ petition filed by the respondent was admitted 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 did not figure in the list of Deputy Advocates General appointed by an order dated 31st October, 2012. Petitioner No.1/Respondent No.1 filed contempt petition. That application was dismissed by the Single Judge as misconceived for no clarification of interim order dated 21st October, 2011 restraining termination was necessary. The State preferred LPA which was dismissed by a Division Bench of the High Court.

       Finding of the Court:

       Appointment of law officers must be fair and reasonable, transparent and credible.

       Result: Petitions disposed of.