State law officers’ appointments subject to judicial review, rules Supreme Court

In a much awaited verdict, the Supreme Court has held that appointment of law officers without any transparent selection method will be amenable to judicial review and could be quashed..A Bench of Chief Justice TS Thakur and Justice Kurian Joseph delivered the judgment in two separate cases filed by two law officers (petitioners) challenging the selection, appointment and regularisation of law officers in Punjab and Haryana. Both the petitioners were superseded by candidates with lesser experience when it came to regularisation of their jobs..Senior Advocate PP Rao along with Advocate Nikhil Nayyar appeared for Punjab while Additional Advocate General Alok Sangwan along with Monika Gussain represented Haryana. Abhishek Sharma represented one of the petitioners with Solicitor General Ranjit Kumar the Amicus Curiae..The question before the court was whether the appointment of law officers by State Governments can be questioned, and if the process of appointments can be assailed on the ground that the same are arbitrary, hence, violative of Article 14..Four questions.The Court framed following four questions for consideration.(1) Whether the States of Punjab and Haryana have made any realistic assessment of their requirement before making appointments of Law Officers. .The Court held that no such assessment was made. It held that the power to appoint law officers seemed to have been exercised on an 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..With respect to Haryana, the Court relied on a report submitted by the Comptroller and Auditor General in his report of Social, General and Economic sectors for the year ended March 31, 2012. It then held that,.“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”..Regarding Punjab, the Court held that.“though it is 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 court made it clear that the absence of such a fair assessment process is what will ultimately lead to political aggrandisement, appeasement or personal benevolence of those in power towards those appointed and result in “erosion of the rule of law, public faith in the fairness of the system and injury to public interest and administration of justice”..(2) Whether the States of Punjab and Haryana have formulated any scheme, policy, norms or standards for appointing Law Officers. .Relying on the two affidavits filed by the States, the Court concluded that no procedure for selecting law officers has been prescribed by Punjab and Haryana..“No Selection or Search Committee is constituted or is even envisaged. It is also clear that the two Governments do not consult the High Court before finalizing the list of appointees. The affidavits do not at the same time indicate as to how in the absence of any Selection or Search Committee the State Government ensures a fair selection in which they pick-up the best available and willing to accept the assignment as State counsel…. The affidavits do not state whether the Advocate General, has, in turn, constituted a Committee or followed any procedure or prescribed or formulated any norms for assessing the merit of those willing to work as State counsel.”.The Court also lamented that despite a number of Supreme Court judgments on public authorities, the States continue to claim that they are not accountable when it comes to engagement of counsel..“If a Government counsel discharges an important public function and if it is the primary duty of those running the affairs of the Government to act fairly, objectively and on a non-discriminatory basis, there is no option for them except to choose the best at the bar out of those who are willing and at times keen to work as State counsel.”.(3) Whether appointment of Law Officers by the State Governments need to be made on a fair, reasonable, non-discriminatory and objective basis; .The Court held that 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..The Court therefore held that appointment of government lawyers at district level and High Court is not just a professional engagement but has “public element” and it should hence remain unaffected by political or other extraneous considerations..While holding that the Government and public bodies are free to choose the method for selecting the best lawyers, the Court proceeded to make it clear that the,.“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.” .(4) If answer to question Nos.1, 2 and 3 are found in the negative, what is the way forward?.Based on the above the Court proceeded to issue a slew of directions to Haryana and Punjab. As per the directions both the States will have to constitute a Selection Committee to determine the suitability of the candidates for appointment as State counsel. The Committee will select candidates based on the norms and criteria laid down by the State governments. The Committee will also have to submit the details of the selected candidates to the Chief Justice of the High court who will also give suggestions/ recommendations regarding the suitability of the candidates. The government can then make the appointments after giving due regard to the recommendations of the Chief Justice..The following are, inter alia, the guidelines laid down by the Court:.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..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..The Committee shall on the basis of norms and criteria which the Government concerned may formulate and in the absence of any such norms, on the basis of norms and criteria which the Committee may themselves formulate conduct selection of law officers for the State and submit a panel of names to the Chief Justice of Punjab and Haryana who may set up a Committee of Judges to review the panel and make recommendations to the Chief Justice. The Chief Justice may based on any such recommendations record 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..We further clarify that although we are primarily concerned with the procedure regarding selection and appointment of law officers in the States of Punjab and Haryana and although we have confined our directions to the said two States only yet other States would do well to reform their system of selection and appointment to make the same more transparent, fair and objective if necessary by amending the relevant LR Manuals/Rules and Regulations on the subject..The Court however made it clear that judgment shall not affect the right of the State Governments to appoint any person eligible for such appointment as the Advocate General. The Court has also exempted all the appointments which have already been made by Punjab and Haryana..Read a detailed report of the hearing here..Read the judgment below.