To,
The Honourable Governor,
State of Haryana,
Chandigarh.
Through E-mail Dated:
04/01/2017
Subject: Haryana Cabinet Decision to amend the
through Ordinance Haryana Law Officers (Engagement) Act, 2016, contrary to the
law settled by Honourable Supreme Court IN KRISHAN KUMAR SINGH & ANR.
Vs. STATE OF BIHAR decided on 02.01.2017 in CIVIL
APPEAL NO. 5875 OF 1994 & In PARDEEP KUMAR RAPRIA Vs. STATE OF HARYANA AND OTHERS, T.P.
(C) NO.1073 OF 2015, decided on:30.03.2016.
RESPECTFULLY SHOWTH:
1. That the undersigned was the
Petitioner in the case titled Pardeep Kumar Rapria Vs. State of Haryana and
others (T.P. (C) NO.1073 OF 2015) wherein the Honourable issued below mentioned
directions to the State of Haryana, which reads:
“Para
No. 48 “(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.”
2. That
the after the directions of this Honourable Court the State of Haryana has
passed the Act No. 18 of 2016, i.e., the Haryana Law Officers (Engagement) Act,
2016 and Haryana Law Officers (Engagement) Rules, 2016, which appear to have
been passed with a view to defeat the object of the directions issued by this
Honourable Court in the Transfer Petition.
3. That
through Media Reports/Press Release the undersigned has come to know that ‘On
03/01/2017 the Haryana
Cabinet, which met under the Chairmanship of Chief Minister Mr Manohar Lal here
today, approved the proposal of the Administration of Justice Department to
make an enabling provision by amending the Haryana Law Officers (Engagement)
Act, 2016 so as to facilitate re-engagement of Law Officers, whose term has
expired after the commencement of the Act and who fulfil the eligibility
criteria. The decision to make this amendment was taken because there is acute
shortage of Law Officers in the office of Advocate General and there is an
urgent need to re-engage the Law Officers, whose term is to expire in near
future. There is a sanctioned strength of only 196 Law Officers. The term of
only those Law Officers would be extended whose work and conduct during earlier
engagement has been found satisfactory. As the session of the Haryana Vidhan
Sabha is not likely to be summoned in the near future and the matter is of
emergent nature, it was decided to give effect to the amendment through an
Ordinance.’
4. That
the aforesaid decision of the Haryana Cabinet taken on 03/01/2017 appears to to circumvent the the law settled by Honourable
Supreme Court under Article 141 of the Constitution of India. Further, it’s a
clear case to allow of making back-door
appointments to the coveted Advocate-General’s office, without following the
procedure prescribed in the the Haryana Law Officers (Engagement) Act,
2016 and without the statutory consultation with
the Judiciary. And, as per the media reports the amendment through ordinance is
being done at the behest of certain politicians and higher-ups in the
government machinery who want their ‘favourites’ in the coveted posts in AG
Office.
5. That may
I draw Honourable Governor’s kind attention towards Article 213 of the
Constitution of India. Article 213 provides as follows: “Power of
Governor to promulgate Ordinances during recess of Legislature. — (1) If at any
time, except when the Legislative Assembly of a State is in session, or where
there is a Legislative Council in a State, except when both Houses of the
Legislature are in session, the Governor is satisfied that circumstances
exist which render it necessary for him to take immediate action, he may
promulgate such Ordinances as the circumstances appear to him to require….”
Therefore,
it is respectfully submitted that a responsibility rests on the Honourable
Governor to be satisfied that “circumstances exist which render it necessary
for him to take immediate action” for promulgating or re-promulgating an
Ordinance.
6. That the ordinance route by
the Haryana Govt. clearly appear a fraud on power or an abuse of power by the
Haryana Cabinet. This essentially involves a situation where the power has been
exercised to secure an oblique purpose of circumventing the law settled by the
Honourable Supreme under Article 141 of the Constitution of India. Hence, the
present Cabinet decision is a clear case of abuse of power, or what is
sometimes called fraud on power — cases where this power is invoked for
achieving oblique ends.
7. That the undersigned is
astonished to colourable exercise of power by the Haryana Cabinet is in the
name of urgency. What is the urgency? In my case Pardeep Kumar Rapria Vs. State
of Haryana and others, Honourable Supreme Court in the Para No. 8 of the
Judgment relied upon the CAG Report of Social, General and Economic sectors
(non PSUs) for the year ended 31-03-2012 for the State of Haryana, which found
that: “In the test-checked months, on an average, more than 50 per cent Law
Officers remained without work.” Therefore, the Law Officers in the AG Office
are already surplus. In such situation, I am unable the understand the extreme
urgency of appointing Advocates through ordinance route.
8. That may I draw the kind
attention of the Honourable Governor towards the very recent directions, i.e.,
on 02.01.2017, of the Constitutional Bench of the Honourable Supreme Court,
directly dealing with the powers of the Governor under Article 213 of the
Constitution of India. Kindly see the below mention crucial Paras of the
judgment:
“Para No. 27 The authority which is conferred
upon the Governor to promulgate Ordinances is conditioned by two requirements.
The first is that an Ordinance can be promulgated only when the state
legislature is not in session. When the legislature is in session, a law can
only be enacted by it and not by the Governor issuing an Ordinance. The second
requirement is that the Governor, before issuing an Ordinance has to be
satisfied of the existence of circumstances rendering it necessary to take
immediate action. The existence of circumstances is an objective fact. The
Governor is required to form a satisfaction of the existence of circumstances
which makes it necessary to take immediate action. Necessity is distinguished
from a mere desirability. The expression “necessity” coupled with “immediate
action” conveys the sense that it is imperative due to an emergent situation to
promulgate an Ordinance during the period when the legislature is not in
session. The Governor may then promulgate an Ordinance “as the circumstances
appear to him to require”. Both these requirements indicate a constitutional
intent to confine the power of the Governor to frame Ordinances within clearly
mandated limits. The first limit describes the point in time when an Ordinance
may be promulgated : no Ordinance can be issued when the legislature is in
session. The second requirement conditions the Ordinance making power upon the
prior satisfaction of the Governor of the existence of circumstances
necessitating immediate action. The power conferred upon the Governor is not in
the nature of and does not make the Governor a parallel law making authority.”
“Legislation by Ordinances is not an ordinary
source of law making but is intended to meet extra-ordinary situations of an
emergent nature, during the recess of the legislature.”
“33. Ordinances made by the President under
Article 123 and by the Governors under Article 213 are subject to the same
constitutional inhibitions. An Ordinance is susceptible of a challenge based on
a violation of a guaranteed fundamental right and would be void to the extent
of an infraction of a fundamental right guaranteed by Part III…… Article 13
provides that a law shall be void to the extent of its inconsistency with Part
III and for that purpose, the expression ‘law’ is defined in clause (3)(a) to
include an Ordinance. Article 367(2) of the Constitution provides that : “367
Interpretation “(2) Any reference in this Constitution to Acts or laws of, or
made by, Parliament, or to Acts or laws of, or made by, the Legislature of a
State, shall be construed as including a reference to an Ordinance made by the
President or, to an Ordinance made by a Governor, as the case may be.”
“The Constitution Bench in AK Roy, while noting
that the Constituent Assembly conferred an Ordinance making power on the heads
of the executive in the Union and the States as a “necessary evil”36, held thus
: “16...That power was to be used to meet extraordinary situations and not
perverted to serve political ends. The Constituent Assembly held forth, as it
were, an assurance to the people that an extraordinary power shall not be used
in order to perpetuate a fraud on the Constitution which is conceived with so
much faith and vision. That assurance must in all events be made good and the
balance struck by the founding fathers between the powers of the government and
the liberties of the people not disturbed or destroyed”. (id at pages 292-293)”
37. In R C Cooper v. Union of India37, a Bench
of eleven Judges of this Court held that the presidential power to promulgate
an ordinance is exercisable in extraordinary situations demanding immediate
promulgation of law. This Court held that the determination by the President
was not declared to be final. Justice J C Shah speaking for the court observed
thus : “23. Power to promulgate such Ordinance as the circumstances appear to
the President to require is exercised--(a) when both Houses of Parliament are
not in session; (b) the provision intended to be made is within the competence
of the Parliament to enact; and (c) the President is satisfied that
circumstances exist which render it necessary for him to take immediate action.
Exercise of the power is strictly conditioned. The clause relating to the
satisfaction is composite: the satisfaction relates to the existence of
circumstances, as well as to the necessity to take immediate action on account
of those circumstances. Determination by the President of the existence of
circumstances and the necessity to take immediate action on which the
satisfaction depends, is not declared final.” (emphasis supplied)”
Therefore, in view of the above, it is prayed
that the Honourable Governor may kindly take decision in accordance with the
aforesaid law settled by Honourable Supreme Court of India in the two
aforementioned cases.
DATED: 04/01/2017 (PARDEEP
KUMAR RAPRIA)
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