REPORTABLE
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
T.P. (C) NO.1073 OF 2015
Pardeep Kumar Rapria …Appellant
Versus
State of Haryana and Ors. …Respondents
J U D G M E N T
T.S. THAKUR, CJI.
Leave granted.
2. This 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 of India. 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
falls for our consideration
38. 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, non- discriminatory
and objective manner is a facet of the Rule of Law in a constitutional democracy
like ours.
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.
40. What then are the ways out of the situation which has been as a governmental
fiefdom that is immune to judicial
review and correction?
The Law Commission has, it is heartening to note, addressed a similar question at some
length and made meaningful recommendations in its 197th Report. The Commission
while examining issues concerning appointment of public prosecutors observed:
“The
Sessions Judge who has knowledge of the caliber, experience and
character of lawyers
practicing in the Sessions Courts
is well suited to
suggest the best names of lawyers so that the interests of prosecution, the interests of the accused are fully taken care of. This being the logic behind the provision for consultation, any amendment by the States
deleting
the
check on
arbitrary
appointments of Public Prosecutors, will be violative of Art. 14 of the Constitution. The fundamental point
- which has to be remembered – is that any law made
by the Centre or State Legislature in regard to
appointment of Public Prosecutors must conform to
the principles governing administration of criminal
justice in which the public prosecutor has an
independent and special role as stated in Chapter II . In as much as the Public Prosecutor is a ‘limb of the judicial process’ and ‘an officer of Court’ as stated by the 18 Supreme Court (see Chapter II), any method of appointment which sacrifices the quality of the prosecution or which enables State
Governments to make appointments at their choice without
proper screening, proper assessment of the qualifications, experience or integrity of the individuals, be they the Public Prosecutors selected
from
the
Bar
or appointed from among the Prosecuting Officers, will
not stand the test of non-arbitrariness under Art. 14
of the Constitution of India. The
scheme must provide
for appointing Public Prosecutors who shall bear all the
qualities mentioned in
Chapter II”.
(emphasis supplied)
41. Dealing with the appointment procedure
of Public
Prosecutors and the need to provide for proper checks as also the validity of any state amendment
to section 24,
removing these checks from the scheme of Section 24, the Commission observed:
“Appointment procedure laid down in any legislation cannot give arbitrary discretion to State Governments. There must be proper checks in the
matter
of appointment of Public Prosecutors/Addl.
Public Prosecutors in 22 the Sessions Court so that they can be efficient in their functioning, objective
and independent of the Police and the Executive. Any scheme of appointments without
proper checks will
be violative of Art. 14 of the Constitution of India. If
the central legislation expressly requires consultation with Sessions Judge and that he should assess merit,
experience and good
character as
a
necessary condition for appointment as Public Prosecutors under sec. 24(4), then any State Amendment which deletes
the provision
relating to consultation with the Sessions Judge and to the above qualities required of the appointee, then such deletion by the State
Legislature
amounts giving a licence for arbitrary
appointments and will violate Art. 14. In such cases, assent of the President to the State Amendment can be justifiably refused.”
In the result, therefore, we dispose of Transfer Petition
No.1073 of 2014 and Civil Appeal arising out of SLP(C)
No.8416/2016 (CC No.5470 of 2014) with the following directions:
(1) 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.
(2) 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.
(3) 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. 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. Having said that we must hasten to add that we are not
interfering with the appointments already made in
the States
of
Punjab
and
Haryana
which can continue to remain valid for the period the same has
been made but
any
extension or re-appointment
shall go through the process indicated by us in the
foregoing paragraphs.
(4) 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.
(5) We make it clear that nothing said by us in the foregoing paragraphs of 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.
(6) 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.
........................... CJI.
(T.S. THAKUR)
..............................J.
(KURIAN JOSEPH)
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