SC warns States: Don't make appointment of Law Officers a Political Exercise, Read Judgment

March,31,2016:

Verdict gives guidelines for Punjab and Haryana to follow in the process

Appointment of law officers, from Advocate Generals to those below, by State governments to fight cases involving crucial public and State interests should not be reduced to an exercise of political aggrandisement, appeasement or personal benevolence by those in power, the Supreme Court said on Wednesday.

In a judgment dealing with a batch of petitions challenging appointment of law officers, including assistant and additional advocate generals in Punjab and Haryana, a Bench of Chief Justice of India T.S. Thakur and Justice Kurian Joseph said it is “high time” fair, transparent and objective criteria based on merit is adopted for appointment of law officers.

“Appointments are made not because they are required but because they come in handy for political aggrandisement, appeasement or personal benevolence of those in power towards those appointed. The dangers of such an uncanalised and 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,” Chief Justice Thakur, who authored the verdict for the Bench, observed.

The judgment gave a series of guidelines for Punjab and Haryana to follow in the appointment of law officers.

“It is high time to call a halt to this process lest even the right thinking become cynical about our capacity to correct what needs to be corrected,” the Supreme Court said.

In Haryana’s case, the judgment quoted from the Comptroller and Auditor General’s report of Social, General and Economic sectors (non-PSUs) to note that in the month of January 2012, out of 179 law officers on the roll on an average, 140 were not allotted any work and 87 were without work for whole of the month. The excess number of law officers led to the payment of “idle salaries” to the tune of Rs. 69.48 lakh for that month.

The judgment said States should make a realistic assessment of the requirement before appointing law officers.

Chief Justice Thakur wrote that public interest should be the guiding consideration while making the appointment of law officers.

“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 far-reaching consequences,” the Supreme Court said.

The court further asked Punjab and Haryana to institute search committees headed by their Law Secretaries for recruiting government law officers. The judgment directed the States to send the details of the candidates shortlisted to the Chief Justice of the Punjab and Haryana High Court for consideration by a committee of high court judges.

The Bench Ruled,''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 from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India.

(vi) Appointment of Government counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a “public element” attached to them.

(vii) Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies, be only 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 considerations will be amenable to judicial review and liable to be quashed.

(xii) Judicial review of any such appointments will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity.

Hindu

Read Full Text of Judgment Here-

SC says Appointment of law officers should not be a political exercise.pdf

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