HC restrains UT govt from appointing law officers afresh except AG


Jammu: The Jammu and Kashmir High Court on Tuesday restrained the UT government from making fresh appointment of Law Officers (as defined in SRO 98 of 2016) except the Advocate General.

This significant order has been passed by Justice Sanjeev Kumar in a petition filed by one Sushil Chandel who expressed anguish over the advertisement notice dated March 11, 2020, issued by the Department of Law, Justice and Parliamentary Affairs, inviting applications for engagement as Standing Counsel in various districts of Jammu and Kashmir. He also felt aggrieved of the selection criteria indicated in the impugned advertisement notice and sought issuance of a court direction to the respondents for issuance of a fresh notification after framing a fair, just and reasonable selection criteria.

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). However, these Rules do not law down any criteria or procedure of selection nor these adhere to the directives and the guidelines laid down by the 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, he observed.

As a matter of fact, the judgment in Brijeshwar Singh Chahal’s case (supra) was rendered by the Supreme Court on March 30, 2016, and the Rules of 2016 were promulgated by the then State of Jammu and Kashmir vide SRO 98 on March 24, 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, Justice Sanjeev Kumar observed. 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, he observed.

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 observed.

“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,’’ he pointed out.

“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 Sanjeev Kumar observed, adding that he is of the view that this petition deserves to be treated as ‘PIL’ suo moto and directed that  the 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, 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, he directed.

Noting that the petitioner 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, Justice Sanjeev Kumar observed that 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, he added.

Further observing that some of the issues raised in the 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, he added 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, he observed, adding that 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,’’ he added.