HC restrain Govt to appoint fresh law officer except AG
JKUT (Jammu), June-29-2021-( JNF):- Justice Sanjeev Kumar today restrained Govt for fresh appointment of Law Officers (as defined in SRO 98 of 2016) except Advocate General.
This significant order has been passed in a petition filed by one Sushil Chandel is aggrieved of advertisement notice dated 11th of March, 2020, issued by the Department of Law, Justice and Parliamentary Affairs, inviting applications for engagement as Standing Counsel for various districts of the Union Territory of Jammu and Kashmir. The petitioner also feels aggrieved of the selection criteria indicated in the impugned advertisement notice. The petitioner, therefore, prays for a direction to the respondents to issue a fresh notification for engagement of Standing Counsels in various districts of Union Territory of Jammu and Kashmir after framing selection criteria, which is fair, just and reasonable after framing selection criteria which is fair, just and rational.
Justice Sanjeev Kumar after hearing both the sides observed that the fact remains that the Rules of 2016 so framed by the then State of Jammu and Kashmir and deemed to have been in operation in the Union Territory of Jammu and Kashmir as well, only provide for eligibility requirements for being appointed as Advocate General, Additional Advocate Generals, Deputy Advocate Generals and Government Advocates in the High Court, Advocates on Record and Additional Advocate Generals in the Supreme Court of India, Public Prosecutors, Standing Counsels in the High Court and the subordinate Courts and Special Counsel (collectively known as “Law Officers” in the Rules) but the Rules of 2016 aforesaid do not law down any criteria or procedure of selection nor these Rules adhere to the directives and the guidelines laid down by the Hon’ble Supreme Court in Brijeshwar Singh Chahal’s case. In the absence of fair, just and transparent procedure of selection prescribed, the respondents have been indulging in pick and choose method and most of the engagements are motivated by political and other considerations.
as a matter of fact, the judgment in Brijeshwar Singh Chahal’s case (supra) was rendered by the Supreme Court on 30th of March, 2016, and the Rules of 2016 were promulgated by the then State of Jammu and Kashmir vide SRO 98 on 24th of March, 2016. Obviously, the then authorities, who were involved in the framing of the Rules, did not have the advantage of the judgment rendered by the Supreme Court in Brijeshwar Singh Chahal’s case. It also appears that the aforesaid judgment was either not brought to the notice of the concerned authorities of the Union Territory of Jammu and Kashmir or the authorities conveniently escaped from complying with it by taking benefit of the observations made by the Supreme Court in paragraph 51.6 reproduced hereinabove. It is, therefore, high time that the issue is examined by this Court at length and the respondents are directed to come up with a scheme for engagement of Government Law Officers, whether statutory or otherwise, which is in consonance with Article 14 of the Constitution of India and in conformity with the law succinctly laid down on the subject by the Supreme Court in Brijeshwar Singh Chahal’s case.
Court further observed that I have also noticed that in making the appointment of Public Prosecutors in District Courts as well as in High Court, the statutory provisions of Section 24 of the Code of Civil Procedure are not complied with. I am not aware whether the respondents have appointed Public Prosecutors/Additional Public Prosecutors for prosecuting its criminal cases in the High Court or not. It is also not made known to me whether Additional Advocate Generals, Deputy Advocate Generals or Government Advocates have been ex-officio appointed as Public Prosecutors/Additional Public Prosecutors as well. If the answer to this question is in affirmative, whether respondents in compliance of Section 24 have consulted the High Court or not. These are some of the issues which need determination by an authoritative pronouncement by a larger Bench.
It may be noted that the petitioner in this petition has neither himself applied nor does he seek his appointment/engagement as a Law Officer, either at the district level or in the High Court. He appears to have come to the Court virtually in a representative capacity raising issues of seminal importance affecting his legal fraternity and the administration of justice.
In so far as challenge to the impugned selection criteria is concerned, it is pointed out that the impugned selection criteria laid down in the advertisement notice itself though within the discretion of the respondents and, prima facie, not found bad yet would pose practical difficulties in its application. There are no specific guidelines for assessing a candidate’s working experience. 50 points earmarked for institutions are capable of being misused in the absence of proper yardstick. It is also not clear as to whether filing of civil suit/proceedings must be by the candidate as an independent counsel or it could be in his capacity of a junior to a senior advocate. An advocate having independent practice may have less number of institutions as compared to a candidate working with some noted senior advocate. Similarly, allocation of 10 marks to qualification higher than LL.B is apparently irrational and does not seem to have any nexus with the job, the candidates are being selected for. When the Chief Justice of India and the Judges of Supreme Court and High Courts can be appointed with the qualification of LL.B only, then why can’t a candidate with the same qualification will not make a competent Law Officer.
Justice Sanjeev Kumar observed that some of the issues which have been raised in this petition, particularly with regard to sustainability of SRO 98 of 2016 and also those which cropped up during hearing of the matter, are, in my opinion, issues of great public importance. The quality of assistance rendered to the court has direct impact on the quality of justice delivered. It is, therefore, of essence that the advocates who represent State/UT in civil as well as criminal matters are of sterling quality. Poor assistance from either side particularly from Government side, which is the biggest litigant in courts, affects administration of justice. I am, therefore, of the considered view that the policy of engagement of Government lawyers at all levels deserves fresh look and it is imperative that these engagements are merit based and do not fall foul of Article 14 of the Constitution Of India. In the aforesaid backdrop, I am of the view that this petition deserves to be treated as ‘PIL’ suo moto and directed that this matter be placed before the Chief Justice for its enlisting before the appropriate Bench in terms of Rule 24 (8) of the Writ Proceeding Rules, 1997.
Court ordered that in the meanwhile, it is provided that till the matter is considered by the PIL Bench, there shall be no fresh appointment of Law Officers (as defined in SRO 98 of 2016) except Advocate General. JNF