HC restrains Govt from making fresh appointment of Law Officers

High Court today restrained Government from making fresh appointment of Law Officers except Advocate General.

This significant order has been passed in a petition filed by Sushil Chandel, who 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 and 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 hearing both the sides, Justice Sanjeev Kumar observed, “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 do not law down any criteria or procedure of selection nor these Rules adhere to the directives and the guidelines laid down by the Supreme Court in Brijeshwar Singh Chahal’s case”, High Court said, adding “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 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”, High Court said, adding “it also appears that the 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”.

“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”, Justice Sanjeev Kumar said.

“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”, Justice Kumar said.

“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”, Justice Kumar said.

“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”, High Court said, adding “50 points earmarked for institutions are capable of being misused in the absence of proper yardstick”.

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 Kumar said.

“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”, High Court said, adding “this petition deserves to be treated as ‘PIL’ suo moto”.

Accordingly, Justice Kumar 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.

“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”, the High Court said.

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