# STATE OF PUNJAB & ANR v. BRIJESHWAR SINGH CHAHAL & ANR

- **Citation:** [2016] 4 S.C.R. 685
- **Court:** Supreme Court of India
- **Decided:** 2016-03-30
- **Case number:** Civil Appeal No. 3194 of2016
- **Bench:** T.S. Thakur, Kurian Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-punjab-anr-v-brijeshwar-singh-chahal-anr-31224
- **Pages:** 39

## Headnote

Advocates - Law Officers - Appointment of - By the State
Government - Whether the appointment of Law Officers can be
questioned or the process, by which such appointments are made,
can be assailed on the ground of being arbitrary and hence violative
of Art. 14 of the Constitution - Held: The Government as well as
the public bodies are trustees of the power vested in them and
custodians of public interest - Therefore, the nature of their 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 -
Duty to act fairly is a facet of law and Art. 14 of the Constitution is
intolerant towards arbitrariness - The States in discharge of their
public duty and power to select and appoint State Counsel, cannot
disregard either the guarantee contained in Art.14 or the duty to
protect public interest by picking up the best, nor can the States
frustrate, delay or negate the judicial process of administration of
;ustice which heavily banks upon the assistance rendered by the
Bar - The States (States of Punjab and Haryana) in the present
case have neither made any realistic assessment of their requirement,
before making appointment of law Officers, nor haw: formulated
any scheme, policy, ,.urms or standards for appointing such officers
- There should bP a check on the appointment of State Counsel
especially in situwions where the appointment is unregulated by
any constitutional or statutory provision - The States of Punjab
and Haryana are directed (1) To undertake a realistic assessment
of their need; (2) Based on the assessment so made, constitute a
Selection Committee; (3) The Committee on the basis of norms and
criteria (formulated by the Government or the Committee) conduct
selection of Law Officers and submit a panel of names to the Chief
Justice of High Court; (4) The Chief Justice to set up a Committee
of Judges to review the panel and make recommendations; (5) The
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SUPREME COURT REPORTS
[2016] 4 S.C.R.
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Chief Justice to record his views regarding the suitability of the
recommended candidate - Clarified that the present judgment will
not effect appointment of Advocate General in terms of Art. 165 of
the Constitution - Constitution of India - Art. 14.
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Disposing of the appeal and the petition, the Court
HELD: 1.1 For a fair and objective system of appointment,
there ought to be a fair and realistic assessment of the
requirement, for otherwise the 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. The dangers of such
an uncanalised & unregulated system of appointment are multidimensional 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. [Para 9] [700-C-D]
1.2 No such assessment has been made nor any material
disclosed by the State Governments to demonstrate that they
were sensitive to the need for any such assessment. Power to
appoint Law Officers was all the same exercised on a totally tu!
hoc basis without any co-relation between the work load in the
Courts and the number of Law Officers appointed to handle the
same. If the power to appoint is exercised not because such
exercise is called for but because of some extraneous or other
reason, the legitimacy of the exercise will itself become
questionable. [Para 8] [696-G-II; 697-A-B)
2.1 When the appointments are made to offices heavily
remunerated from the public exchequer, the same cannot or ought
not to remain unregulated. That is particularly so when those
appointed arc expected by the very nature of their appointment
to discharge important public function affecting not only State
interest but the quality of justice which the courts administer.
[Para 15] [704-D-E)
2.2 In the cas

## Text

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[2016] 4 S.C.R. 685
STATE OF PUNJAB & ANR.
v.
BRIJESHWAR SINGH CHAHAL & ANR.
(Civil Appeal No. 3194 of2016)
MARCH 30, 2016
[T.S. THAKUR, CJI AND KURIAN JOSEPH, J.]
Advocates - Law Officers - Appointment of - By the State
Government - Whether the appointment of Law Officers can be
questioned or the process, by which such appointments are made,
can be assailed on the ground of being arbitrary and hence violative
of Art. 14 of the Constitution - Held: The Government as well as
the public bodies are trustees of the power vested in them and
custodians of public interest - Therefore, the nature of their 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 -
Duty to act fairly is a facet of law and Art. 14 of the Constitution is
intolerant towards arbitrariness - The States in discharge of their
public duty and power to select and appoint State Counsel, cannot
disregard either the guarantee contained in Art.14 or the duty to
protect public interest by picking up the best, nor can the States
frustrate, delay or negate the judicial process of administration of
;ustice which heavily banks upon the assistance rendered by the
Bar - The States (States of Punjab and Haryana) in the present
case have neither made any realistic assessment of their requirement,
before making appointment of law Officers, nor haw: formulated
any scheme, policy, ,.urms or standards for appointing such officers
- There should bP a check on the appointment of State Counsel
especially in situwions where the appointment is unregulated by
any constitutional or statutory provision - The States of Punjab
and Haryana are directed (1) To undertake a realistic assessment
of their need; (2) Based on the assessment so made, constitute a
Selection Committee; (3) The Committee on the basis of norms and
criteria (formulated by the Government or the Committee) conduct
selection of Law Officers and submit a panel of names to the Chief
Justice of High Court; (4) The Chief Justice to set up a Committee
of Judges to review the panel and make recommendations; (5) The
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[2016] 4 S.C.R.
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Chief Justice to record his views regarding the suitability of the
recommended candidate - Clarified that the present judgment will
not effect appointment of Advocate General in terms of Art. 165 of
the Constitution - Constitution of India - Art. 14.
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Disposing of the appeal and the petition, the Court
HELD: 1.1 For a fair and objective system of appointment,
there ought to be a fair and realistic assessment of the
requirement, for otherwise the 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. The dangers of such
an uncanalised & unregulated system of appointment are multidimensional 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. [Para 9] [700-C-D]
1.2 No such assessment has been made nor any material
disclosed by the State Governments to demonstrate that they
were sensitive to the need for any such assessment. Power to
appoint Law Officers was all the same exercised on a totally tu!
hoc basis without any co-relation between the work load in the
Courts and the number of Law Officers appointed to handle the
same. If the power to appoint is exercised not because such
exercise is called for but because of some extraneous or other
reason, the legitimacy of the exercise will itself become
questionable. [Para 8] [696-G-II; 697-A-B)
2.1 When the appointments are made to offices heavily
remunerated from the public exchequer, the same cannot or ought
not to remain unregulated. That is particularly so when those
appointed arc expected by the very nature of their appointment
to discharge important public function affecting not only State
interest but the quality of justice which the courts administer.
[Para 15] [704-D-E)
2.2 In the case of Punjab and Haryana, there is not even a
semblance of any selection process in the matter of appointment
of those chosen for the job leave alone a process that is credible
in terms of its fairness and objectivity. The practice of making
appointments in disregard of what is expected of a functionary
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
&ANR.
sensitive to the demands of fairness and equality of opportunity
even when in vogue for long, runs contrary to the true legal
position. The dominant purpose which ought to permeate any
process of selection and appointment namely "protection of
public interest" in courts by availing services of the most
meritorious is clearly defeated by the method that the States
have been following and continue to follow. Even after the
pronouncements of this Court have settled the principles on
which public authorities are required to act while discharging
their functions, the States continue to harp on the theory that
in the matter of engagement of State counsel they are not
accountable and that the engagement is only professional and/or
contractual hence unquestionable. [Para 15) [704-E-ll)
2.3 Ifa 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 nondiscriminatory 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. It is also their duty to ensure that the
process by which the best are selected is transparent and
credible. Abdicating that important function in favour of the
Advocate General of the State who, in turn, has neither the
assistance of norms or procedure to follow nor a mechanism for
assessment of merit will be self-defeating. 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 long overdue. [Para 15) (705-A-C]
3.1 Not only the Government but all public bodies arc
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. Duty to act fairly and reasonably is a facet of 'Rule of
Law' in a constitutional democracy like India. Arbitrariness has
no place in a polity governed by rule of law and Article 14 of the
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Constitution oflndia strikes at arbitrariness in every State action.
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11,'ara 16] 1705-D-F]
Maneka Gandhi v.
Union of India (1978) 2 SCR
621 - followed.
S G Jaisinghani v. Union of India AIR 1967 SC 1427 :
1967 SCR 703; E P Royappa v. State of Tamil Nadu
and Anr. 1974 (2) SCR 348 : (1974) 4 SCC 3; Ramana
Shetty v. International Airport Authority 1979 AIR
(SC) 1628 : 1979 (3) SCR 1014; D.S. Nakra v. Union
of India 1983 (2) SCR 165 : 1983 (1) SCC 305;
Dwarkadas Marfatia v. Board of Trustees of the port
of Bombay 1989 (2) SCR 751 :1989 (3) SCC 293; Som
Raj & Ors.
v. State of Haryana & Ors. 1990 (1)
SCR 535 : (1990) 2 SCC 653; Neelima Misra v.
Harinder Kaur Paintal & Ors. 1990 (2) SCR 84 :
(1990) 2 SCC 746; Sharma Transport v. Governmem
of A.P & Ors. 2001 (5 ) Suppl. SCR 390 : (2002) 2
sec 188 - relied on.
United States v. Wunderlick 1951 342 US 98:96 Law
Ed 113 - referred to.
3.2 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. [Para 36)
[714-B-C)
3.3 A fair, reasonable or non-discriminatory process of
appointment of State Counsel is not thus demanded only by the
rule of law and its intolerance towards arbitrariness but also
. by reason of the compelling need for doing complete justice.
which the Courts are obliged to do in each and every cause. 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
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL
&ANR.
of justice which so heavily banks upon the assistance rendered
by the members of the Bar. [Para 37) [715-C-E)
3.4 Appointment of Government cn:msel 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. 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. 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. The Government
and public bodies are free to choose the method for selecting
the best lawyers bnt 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. 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. 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. [Para 38) [716-B-E, G-H; 717-A]
Shrilekha Vidyarthi v. State of U.P. 1990 (1) Suppl.
'-';CR 625 : 1991 (1) SCC 212; State of U.P. and
Jrs. etc.
v.
U.P. State Law Officers Association and
Ors. etc. 1994 (1) SCR 348 : (1994) 2 SCC 204; State
of U.P. and Am: v Johri Mal 2004 (1) Suppl. SCR 560
: (2004) 4 sec 714 - relied on.
Ramuna Dayaram Shetty v. International Airport
Authority of India 1979 (3) SCR 1014 : (1979) 3 SCC
489; Kasturi Lal Lakshmi Reddy v. State of Jammu and
Kashmir 1980 (3) SCR 1338 : (1980) 4 SCC 1;
Dwarkadas Mmfatia and Sons v. Board of Trustees of
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the Port of Bombay 1989 (2) SCR 751 : (1989) 3 SCC
293; Mahabir Auto Stores and Others v. Indian Oil
Corporation and others 1990 (1) SCR 818 : (1990) 3
sec 752 - referred to.
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Law Commission 197'h Report - referred to.
4.1 Taking a cue from the provisions of Section 24 Cr.P.C.,
it is held that what serves as a check on the power of the
Government to appoint a Public Prosecutor, can as well be a check
on the appointment of the State Counsel also. That is because,
while the Public Prosecutor's power under the Code of Criminal
Procedure Code gives him a distinctive position, the office of a
State Counsel, in matters other than criminal, are no less
important. A State Counsel by whatever designation called,
appears in important civil and constitutional matters, service
and tax matters and every other matter where substantial stakes
are involved or matters of grave and substantial importance at
times touching public policy and security of State are involved.
To treat such matters to be inconsequential or insignificant is to
trivialise the role and position of a State Counsel at times
described as additional and even Senior Additional Advocate
General. What holds good for appointment of a Public Prosecutor
as a check on arbitrary exercise of power must, therefore, act as
a check on the State's power to appoint a State Counsel as well
especially in situations where the appointment is unregulated by
any constitutional. or statutory provision. [Para 441 [ 7 1 9- E - II;
720-A)
4.2 Such a requirement is implicit in the appointing power
of the State which power is in trust with the Government or the
public body to be exercised only to promote public interest. The
power cannot be exercised arbitrarily, whimsically or in an uncanalised manner for any such exercise will fall foul of Article 14
of the Constitution of India and resultantly Rule of law to which
the country is committed. [Para 44) [720-A-B)
4.3 No lawyer has a right to be appointed as State
Government counsel or as public prosecutor at any level nor does
he have a vested right to claim extension in the term for which
he/she is initially appointed. 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
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
691
&ANR.
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. (Para 45) [720-B-C,
D-E)
4.4 With regard to the mechanism for such consideration,
there are 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.
The second aspect is about the process of selection and
assessment of merit of the candidates by a credible process.
The process of selection can be primarily left to the State
Government who can appoint a Committee of officers to carry
out the same. The process and selection of appointment
would be fair and reasonable, transparent and credible if the
Government or the Committee as the case may be also stipulates
the norms for assessment of merit and suitability. [Paras 45
and 46) [720-E-F, H; 721-A, B-C]
4.5 The third stage of the process of selection and
appointment shall in the absence of any statutory provisions
regulating such appointments involve consultation with the
District & Sessions Judge if the appointment is at the district
level and the High Court if the appointment is for cases conducted
before the High Court. The Chief Justice could constitute a
Committee of Judges to review the names recommended for
appointment and offer his views in regard to professional
competence and suitability of candidates 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.
[Para 47) [721-D-FJ
5.1 The Court directed the States of Punjab and Haryana to
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
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Committee with such number of officers as the State Government
may determine to selel-: 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
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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
fr.,., to appoint the candidates having regard to the views
expressed by the Chief Justice regarding their merit and
suitability. The procedure for assessment of merit of the
candidates and consideration by the High Court will apply in all
cases where the candidates are already working as State counsel
but are being given an extension in the term of their appointment.
[Para 48) [721-G-H, 722-A-D)
5.2 The writ-petitioners shall also be free to offer
themselves for consideration before the Committee appointed
by the State Government in which event their claims may also
be considered having regard to their merits, suitability and
performance as State counsel for the period they have worked
as State counsel. [Para 48) [722-F)
6. It is clarified that nothing said in this judgment shall
affect the right of the State Governments to appoint any person
eligible for such appointment as the Advocate General of the
State in terms of Article 165 of the Constitution of India. It is
further clarified that although the Court is primarily concerned
with the procedure regarding selection and appointment of law
officers in the States of Punjab and Haryana and although the
directions are confined 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. [Para 48) [722-G-H; 723-A-B)
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL
693
&ANR.
Case Law Reference
A
1967 SCR 703
relied on
Para 17
1951 342 US 98:96 Law Ed 113 referred to
Para 17
1974 (2) SCR 348
relied on
Para 18
(1978) 2 SCR 621
followed
Para 19
8
1979 (3) SCR 1014
relied on
Para 20
1983 (2) SCR 165
relied on
Para 21
1989 (2) SCR 751
relied on
Para22
1990 (l) SCR 535
relied on
Para 23
c
1990 ( 2 ) SCR 84
relied on
Para23
2001 (5 ) Suppl. SCR 390
re!ied on
Para 23
1990 (1) Suppl. SCR 625
relied on
Para 25
D
1979 (3) SCR1014
referred to
Para28
1980 (3) SCR 1338
referred to
Para 28
1989 (2) SCR 751
referred to
Para 28
1990 (1) SCR 818
referred to Para28
E
1994 (1) SCR 348
relied on
Para 30
2004 (1) Suppl. SCR 560
relied on
Para34
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3194 of
2016.
From the Judgment and Order dated 25.09.2013 of the High Court
F
of Punjab and Haryana at Chandigarh in Letters Patent Appeal No.
1458 of2013 (O&M)
WITH
T. P. (C) No. 1073 of2015.
G
Nikhil Nayyar, Saurabh Ajay Gupta, AAGs, P. P. Rao, Sr. Adv.,
Kuldip Singh, J. S. Chhabra, Pardeep Kumar Rapria, Abhishek Sharma,
Advs. for the Appellants.
Anil Grover, AAG, Satish Kapoor, Dr. Monika Gusain, Advs. for
the _Respondents.
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The Judgment of the Court was delivered by
T.S. THAKUR, CJI. I. Leave granted.
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1-1
2. Th is appeal and the accompanying transferred petition raise a
question of considerable public importance. The question precisely 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 oflndia. Before we advert to
the juristic dimensions of that question, we may briefly set out the factual
backdrop in which the same falls for our consideration.
3. Petitioner No. I to the writ petition was initially appointed as an
Assistant Advocate General in terms of an order dated 23rd 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. 1-1 is 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.20000 of2011 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 inthe pay scale ofRs.37,40067,000/- and a grade pay of Rs. I 0,000/-. The writ petitioner/respondent
No. I herein 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. It was contended that while
respondent No. I herein had statted his career as an Assistant Advocate
General and was re-designated as Deputy Advocate General in the year
2008 in which capacity he was working for the past nearly eight years,
petitioner No.2 in the writ petition had just about six years of such
experience while respondent No.2 herein had no more than four years
and five months experience before she was absorbed as Senior Deputy
Advocate General in the office of the Advocate General. The grievance
of the writ petitioners/respondent No.1 herein was that the State
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
& ANR. [T.S. THAKUR, CJI.]
Government had formulated no criterion and followed no norms for
absorption on a non-discriminatory basis of those working as Law Officers
of the State. The absorption of petitioner No.2 and respondent No.3
was dubbed as illegal, arbitrary and discriminatory in the writ petition;
and a direction to the appellantto frame a policy, laying down guidelines
for making appointment/absorption/re-designation in the office of the
Advocate General and to evolve and prescribe suitable criterion for
regularisation or absorption of those working in that office prayed for. A
certiorari quashing order dated 23rd September 2011 by which respondent
No.3 was absorbed on the post of Senior Deputy Advocate General
was also prayed for, besides a mandamus directing the State to consider
the case of the writ petitioners for absorption.
5. A Single Judge of the High Court before whom the writ petition
came up for hearing, issued notice to the respondent in the writ petition
and stayed the termination of the services of petitioner No. I in the
meantime. The State Government appeared in response to the notice to
contest the writ petition, inter alia, on the ground that the appointment
of petitioner No. I was contractual in nature terminable at any point of
time. It was also urged that petitioner No.2 in the writ petition had been
absorbed considering her good performance.
6. By an order dated 18th October, 2012 the writ petition ti led by
the respondent was admitted to hearing and the interim direction
restraining the State Government from terminating the services of the
writ petitioner-rt-spondent No. I continued. With the contractual tenure
of respondent No. I as Deputy Advocate General coming to an end on
31st October, 2012 his name does not appear to have figured in the list
of Deputy Advocates General appointed by an order dated 3 I st October,
2012. Petitioner No. I/Respondent No. I 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.17076of2012 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 !st 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
I st December, 2012 passed by the Single Judge, the State preferred
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LPANo.1458 of2013 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.24 7 of 2015 (renu111bered as
T.P (C) No.1073 of 2015), the petitioner had prayed for quashing of
certain State Government orders besides a mandamus directing the State
ofHaryana to engage him as a Law Officer. The petitioner has, however,
given up his challenge to the orders impugned in the writ petition and
confined his prayer to a direction for consideration of his case. It was
submitted that the issues raised in the writ petition were generally the
same as have been raised in connected SLP (C) No. (CC) No.5470 of
2014 and the writ petition out of which the said appeal arises. Those
submissions were recorded and Writ Petition No.24 7 of2015 transferred
from the High Court of Punjab and Haryana at Chandigarh to this Court
for final disposal. That is precisely how the appeal and the writ petition
have been heard together for disposal by this common order. The
following questions fall for our dete1mination:
(1)
Whether the States of Punjab and Haryana have 111ade
any realistic assessment of their requirement before
making appointments of Law Officers.
(2)
Whether the States of Punjab and Haryana have
formulated any scheme, policy, nor111s or standards for
appointing Law Officers.
(3)
Whether appointment of Law Officers by the State
Governments need to be made on a fair, reasonable,
non-discriminatory and objective basis; and
(4)
If answer to question Nos. 1, 2 and 3 are found in the
negative, what is the way forward?
Re: Question No.1
8. A realistic assessment of the requirement is the first and foremost
step that one would expect the State to take for any prudent exercise of
the power of appointment of law officers. No such assessment has
been made nor any material disclosed by the State Governments to
demonstrate that they were sensitive to the need for any such assessment.
Power to appoint Law Officers was all the same exercised on what
appears to us to be a totally ad hoc basis without any co-relation between
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
& ANR. [T.S. THAKUR, CJ!.]
the work load in the Courts and the number of Law Officers appointed
to handle the same. There is no gainsaid that ifthe power to appoint is
exercised not because such exercise is called for but because of some
extraneous or other reason the legitimacy of the exercise will itself
become questionable. That is precisely what has been brought out by
the Comptroller and Auditor General in his report of Social, General and
Economic sectors (non PSUs) for the year ended 31-03-2012 for the
State of Haryana. 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. The CAG has while
finding fault with the entire process recommended a realistic assessment
of the number oflaw 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 worklolUl and
without inviting appliclllions resultetl in payment of idle wages of
' 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, Administration of Justice Department engages
Law Officers in various capacities on contract basis as per
terms and conditions prescribed by the State Government.
With a view to verijj; the work assigned to these law officers
and work actually performed by them, the complete records
relating to daily duty rosters, vetting registers and cause lists
of Courts for six months between December 2009 and January
20/ 2 maintained in the office of the Advocate General,
Haryana selected randomly was test checked (May 2012) and
following irregularities were noticed:
697
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698
A
B
SUPREME COURT REPORTS
[2016] 4 S.C.R.
> There was no prescribed procedure for assessment of work
for engagement of Law Officers on contract. The number of
Law Officers on roll to plead legal cases in various courts at
Chandigarh increased from 98 in December 2009 to 179 in
January 2012 although the number of courts where they were
to defend the cases remained the same during the above
period.
> The Law Officers were engaged without giving any
advertisement or wide publicity.
> Jn the test-checked months, on an average, more than 50 per
c
cent Law Officers remained without work. As detailed in Table
2, on an average the percentage of idle Law Officers with
total available strength had arisen from 54 in December 2009
to 78 in January 2012. There was no monitoring of work
assigned to these Law Officers by the Department.
D
Table 2: Detail of Law Officers (LOs) without work and
payment of idle salary
Nurrher
Working
~
Percentc,ge NunVer
kiesa/(l}y
if Loson ~
morherif ifLOrnlv iflos
paidtolOi
rolls
available Los »itlvit renvimi
»rx-kfcr
uitlvit
intk
Clf!JI »Ol7<
»illvit 17!)' mrplete »DI* fer
E
nmh
(XI
»DI*
nvnth
wvlesale
(exchdng
fXY(icular
nmh (in )
Courl
«~i.siftk
lvlkb;i.s
nvnth
ad
va:atiOlri)
F
Dx:eniJer
2(ff)
98
JI
54
55
20
10,33,872
Augt6t
137
21
70
51
27
19,40,983
2010
Nuveniier
151
18
l(X)
()6
42
30,88,534
2010
G
M1rch
153
22
97
63
58
42,21,554
2011
Nuveniier
169
21
123
73
63
49,51,S&J
2011
Januay
1'79
20
140
78
87
69,~786
2012
H
T<Xal /<le sa/(UV naiL/ to law Officers nitllOltl assiJ.mi11f! mzv HVrk
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
& ANR. [T.S. THAKUR, CJ!.]
> In the test-checked months, the number of Law Officers ranging
between 20 and 87 had not been allotted any work for whole
of the month resulting in idle salary 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 name of only one Law Officer was
mentioned. It was further added that these Law Officers
perform multifarious duties/functions such as research of law
for particular pending cases, for general updating of latest
case law, preparing factual and legal notes, preparing
compendium or judgments, etc. However, no requirement or
need was felt to keep record of such assignments as the
concerned Law Officers were responsible to deal with the
cases entrusted to them.
The contention of the Department that the names of all team
members were not mentioned in daily duty roster was not
acceptable as during re-verification of daily duty rosters, after
the exit conference, it was found that wherever a team was
deputed for a specific work, names of all the team members
were mentioned therein.
699
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700
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F
SUPREME COURT REPORTS
[2016) 4 S.C.R.
Thus, the engagement of excess Lmv Officers without assessing
the quantum of work and without resorting to fair and
transparent selection method, resulted in allowing more than
50 per cent Law Officers without work and payment of idle
salary of 2.22 crore."
9. We are 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
upshot of the above discussion is that for a fair and objective system of
appointment, there ought to be a fair and realistic assessment of the
requirement, for otherwise the 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. The dangers of such an uncanalised &
unregulated system ofappointment, 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. 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.
10. Question No.1 is accordingly answered in the negative.
Re: Question No.2
11. The question whether the States of Punjab and Haryana follow
any procedure for selecting practising advocates for appointment as law
officers have troubled us throughout the hearing. We had, therefore,
solicited information from the State of Punjab on certain specific questions
that we formulated in terms of our order dated 1 lth April, 2014 and
asked the State to file an affidavit indicating the following:-
]) What is the procedure followed by the State Government for
selecting practising Advocates for appointment as Law
Officers for the State of Punjab?
2) ls there any selection or Search Committee constituted for the
G
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.
H
4) Does the Government consult the High Court before finalizing
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
& ANR. [T.S. THAKUR, CJ!.]
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. I 073 of 2015, asked the State of
Haryana also to file an affidavit answering the above queries. Both the
States have in compliance with the said orders filed their respective
affidavits. In the affidavit filed on behalf of the State of Punjab it is,
inter alia, stated that there is no definite procedure statutory or otherwise
governing the selection and appointment of advocates practising as law
officers in the State of Punjab. Conventionally, these officers are engaged
on contractual basis on the recommendations of the Advocate General
or in consultation with him. At times, even the Government engages law
officers after making "discreet enquiries" about their suitability for such
engagements. A sizeable number of law officers so engaged are
designated as Public Prosecutors in consultation with the High Court of
Punjab and Haryana. The affidavit sets out in paragraph 4 answers to
the questions on which the State was required to respond. For the sake
of convenience we may extract verbatim the questions and the replies
to the same:
"l) What is tile procedure followed by the State Govemment for
selecting practicing Advocates for appointment as Law
Officers for the State of Punjab.
As stated hereinabove, the engagement of law officers to defend
the State Government in cases assigned to them cannot be regulated
by Statute or policy. Law officers are engaged on the
recommendation of the Advocate General of the State, based,
interalia, on the assessment of individuals by the Advocate General
as well as on recommendations made by colleagues, peers and
others. In some cases, the State Government engages law officers
after making discreet inquiries as to the suitability of the individual
as a law officer.
2) ls there any selection or searclz Committee constituted for
the purpose of making suclt selections. If so, what is the
composition of tlze Committee.
701
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702
SUPREME COURT REPORTS
[2016] 4 S.C.R.
A
Th~re is no selection or search committee constituted for making
such selections.
3) If a Selection/Search Committee has been com·tituted, the
proceedings of the Committee regarding any appointment of
Law Officers from time to time be filed along with the affidavit.
B
Not applicable, in view of response to item 2 above.
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 en.~ures that
those picked up are the best at the Bar.
c
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
D
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11
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 alon1: with the affidavit.
(i) In reply to above, Point No. S, the details of total numbers of Law
Officers currently working is given below:
Sr.
Designation
No. of Law Officers
No.
I.
Additional Advocate General,
74
Punjab
2.
Senior Deputy Advocate
05
General, Punjab
3.
Deputy Advocate General,
40
Punjab
4.
Assistant Advocate General,
55
Punjab
5.
Advocate-on-Record
02
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL
& ANR. [T.S.