Rajasthan High Court - Jaipur
Sekh Babaruddin S/O Shri Guldeen Khan vs Rajasthan State Road Transport ... on 17 January, 2023
Author: Sameer Jain
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 27636/2018
Sekh Babaruddin S/o Shri Guldeen Khan
----Petitioner
Versus
Rajasthan State Road Transport Corporation
----Respondent
For Petitioner(s) : Mr. Ankul Gupta
For Respondent(s) : Mr. M.S. Singhvi, AG with
Mr. Darsh Pareek
Mr. Vinayak Joshi, through VC
Mr. Rajpal Dhankhar
Mr. Mahendra Shandilya (President
RHCBA, Jaipur)
HON'BLE MR. JUSTICE SAMEER JAIN
Order
17/01/2023
1. In the backdrop of orders date 15.12.2022, 05.01.2023 and 10.01.2023 passed by this Court in the present writ petition, affidavits were filed by the respondent-Rajasthan State Road Transport Corporation, Jaipur (for short, 'RSRTC') and Office Bearers of the Rajasthan High Court Bar Association, Jaipur on 11.01.2023 and 13.01.2023 respectively.
2. When the matter was listed for hearing on 10/01/2023, one of the members of the Rajasthan Bar Association, Jaipur submitted that recently the Principal Secretary (Law) has issued a circular whereby Government Advocates including the Additional Advocate Generals were given directions for putting their own appearance rather than marking their appearance through their juniors Advocate or assistant counsel.
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(2 of 10) [CW-27636/2018] 3. The said Circular dated 16/11/2022 issued by the
Department of Law & Legal Affairs, Govt. of Rajasthan provides as under:-
"It has come into knowledge, more than often that in large number of cases assigned to Additional Advocate General, the Junior Advocates/Assistant counsel are putting their appearance on behalf of the Additional Advocate General. A number of Departments have also expressed its displeasure regarding the practice, so prevailing. It is needless to emphasize that the Additional Advocate General are appointed in important matters wherein the interest whether administrative or financial of the State, are at stake and an expectation necessarily follows that the interest of the State shall be defended in an effective manner and the litigation is in the safe and experienced hands but the prevailing-practice mentioned above has given a severe blow to the belief of the State, as litigant.
It is, therefore, hereby directed that the practice of putting appearance by the Junior Advocate/Assistant counsels on behalf of the Additional Advocate General, before the Hon'ble Court, should be deprecated with immediate effect and further, to ensure that the Additional Advocate Generals shall personally appear in all matter assigned to it, lest there exists compelling reasons. Any lapses in this regard shall be viewed seriously and attract appropriate action."
4. In the present writ petition, it was noted that different instrumentalities of the State like RSRTC, RIICO, JDA, Nagar Nigam etc. are appointing panel lawyers. In addition to the State and Union of India, so far as the said instrumentalities of the State are concerned, there is heavy litigation pending before this Court wherein the said instrumentalities are either petitioner or respondent. As per the affidavit filed by the respondent, there are about 7500 cases of RSRTC pending adjudication before the Hon'ble High Court.
5. On day to day basis, qua instrumentalities of State, the matters are listed before different Benches but are not effectively represented. In this regard and for determining the number of pending cases and the proposed course of action, when the concerned officers of the RSRTC were called, they made a (Downloaded on 19/01/2023 at 12:27:40 AM) (3 of 10) [CW-27636/2018] categoric statement that they have no definite policy, committee or system for appointment of Panel Lawyers.
6. In this regard, qua heavy pendency of litigation, system of appointing Panel Lawyers and their re-appointment, learned counsel as well as office bearers of RSRTC, members of the Bar and learned Advocate General were requested to put forth their submissions.
7. On perusal of the affidavits as filed by the RSRTC and Office Bearers of the Rajasthan High Court Bar Association, Jaipur, referred to supra, it is reflected that there is no transparent and fair mechanism adopted by the respondent RSRTC in appointment of Government Advocates/Panel Lawyers. There is no policy in place to govern such system of appointment, which might lead to favoritism and may facilitate backdoor entry. As submitted by Mr Mahendra Shandilya, President- RHCBA Jaipur, there is a pick & choose policy adopted by the appointing authorities in this regard and there is a lot of political intervention on account of which effective representation, defence of the case on merit and speedy trial is adversely affected. The said method and criteria of appointment is also in violation of the rights of other practicing lawyers as enshrine under Articles 14 and 19 of the Constitution of India. The legal community at large is discriminated with and their rights are suppressed by the State. The Bar has requested for taking cognizance of the same.
8. Heard and considered.
9. The Hon'ble Apex Court in the case of State of U.P. and Ors. vs. U.P. State Law Officers Association and Ors.:(1994) 2 SCC 204, while dealing with backdoor appointees observed as under:
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(4 of 10) [CW-27636/2018] "...The appointment of lawyers by the Government and the public bodies to conduct work on their behalf, and their subsequent removal from such appointment have to be examined from three different angles viz., the nature of the legal profession, the interests of the public and the modes of the appointment and removal.
...The Government or the public body represents public interests and whoever is in charge of running their affairs, is no more than a trustee or a custodian of the public interests. The protection of the public interests to the maximum extent and in the best possible manner is his primary duty. The public bodies are, therefore, under an obligation to the society to take the best possible steps to safeguard its interests. This obligation imposes on them the duty to engage the most competent servants, agents, advisors, spokesmen and representatives for conducting their affairs. Hence, in the selection of their lawyers, they are duty-bound to make earnest efforts to find the best from among those available at the particular time. This is more so because the claims of and against the public bodies are generally monetarily substantial and socially crucial with far- reaching consequences.
...The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merit and not for any other consideration. ...In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. "
The Apex Court in the case of Kumari Shrilekha Vidyarthi and Ors. v. State of Uttar Pradesh and Ors. : (1991) 1 SCC 212 opined that the appointment made in the post of District Government Counsel is not contractual in nature. It was held that the Government Law Officers including the Public Prosecutors are holders of public offices. It was further opined that even in a case of contract the State cannot act arbitrarily and such arbitrary action is liable to be set aside as violative of Article 14 of the Constitution of India. The decision in Kumari Shrilekha Vidyarthi (supra) is noteworthy for the reason that the same held (Downloaded on 19/01/2023 at 12:27:40 AM) (5 of 10) [CW-27636/2018] judicial review of State action permissible even when the engagement of the Government counsel may be contractual in nature. Further in the case of State of U.P. and Ors. vs. Johri Mal: (2004) 4 SCC 714, while dealing with appointment of public prosecutors and district government counsels, the Apex Court observed as under:
"Only when good and competent counsel are appointed by the State, the public interest would be safeguarded. The State while appointing the public prosecutors must bear in mind that for the purpose of upholding the rule of law, good administration of justice is imperative which in turn would have a direct impact on sustenance of democracy. No appointment of public prosecutors or district counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of people. Retention of its counsel by the State must be weighed on the scale of public interest."
Most importantly, the Apex Court, in the case of State of Punjab & Anr. Vs. Brijeshwar Singh Chahal & Anr.: (2016) 6 SCC 1 has observed as under:-
"16. ...The States also claim that the engagement of State counsel is a professional engagement meaning thereby that the States have no obligation either to prescribe a procedure or follow any definite method while making such appointments. State of Punjab has asserted that the process of selection and appointment cannot be regulated either by policy or by any statute.
17. We have not been able to persuade ourselves to accept the view that even when the appointments are made to offices heavily remunerated from the public exchequer the same can or ought to remain unregulated. That is particularly so when those appointed are expected by the very nature of their appointment to discharge important public function affecting not only State interest but the quality of justice which the courts administer. There is in the case of Punjab and Haryana not even a semblance of any selection process in the matter of appointment of those chosen for the job leave alone a process that is credible in terms of its fairness and objectivity. The practice of making appointments in disregard of what is expected of a functionary sensitive to the demands of fairness and equality of opportunity even when in vogue for long, runs contrary to the true legal position settled by a long line of decisions to which we shall presently refer. The dominant purpose which ought to permeate any process of selection and appointment namely "protection of public interest" in courts by availing services of the most meritorious is clearly defeated by the method that the States have been following and continue to follow. What is regrettable is that even after the pronouncements of this (Downloaded on 19/01/2023 at 12:27:40 AM) (6 of 10) [CW-27636/2018] Court have settled the principles on which public authorities are required to act while discharging their functions, the States continue to harp on the theory that in the matter of engagement of State counsel they are not accountable and that the engagement is only professional and/or contractual hence unquestionable. It is, in our view, too late in the day for any public functionary or Government to advance such a contention leave alone expect this Court to accept the same. If a Government counsel discharges an important public function and if it is the primary duty of those running the affairs of the Government to act fairly, objectively and on a non- discriminatory basis, there is no option for them except to choose the best at the bar out of those who are willing and at times keen to work as State counsel. It is also their duty to ensure that the process by which the best are selected is transparent and credible. Abdicating that important function in favour of the Advocate General of the State who, in turn, has neither the assistance of norms or procedure to follow nor a mechanism for assessment of merit will be self-defeating. We regret to say that in the matter of appointment of State Counsel, the States of Punjab and Haryana have much to do to reform the prevalent system which reform is in our opinion long overdue.
40. The question whether a fair, reasonable and non- discriminatory method of selection should or should not be adopted can be viewed from another angle also equally if not more important than the need for preventing any infringement of Article 14. The State counsel appears for the State Government or for public bodies who together constitute the single largest litigant in our Court system. Statistics show that nearly 80% of litigation pending in the courts today has State or one of its instrumentalities as a party to it. State Counsel/counsel appointed by public bodies thus represent the largest single litigant or group engaged in litigation. It is also undeniable that for a fair, quick and satisfactory adjudication of a cause, the assistance which the Court gets from the Bar is extremely important. It is at times said that the quality of judgment or justice administered by the courts is directly proportionate to the quality of assistance that the courts get from the Counsel appearing in a case. Our system of administration of justice is so modelled that the ability of the lawyers appearing in the cause to present the cases of their respective clients assumes considerable importance. Poor assistance at the Bar by counsel who are either not sufficiently equipped in scholarship, experience or commitment is bound to adversely affect the task of administration of justice by the Court. Apart from adversely affecting the public interest which State counsel are supposed to protect, poor quality of assistance rendered to the courts by State Counsel can affect the higher value of justice itself. A fair, reasonable or non-discriminatory process of appointment of State Counsel is not thus demanded only by the Rule of law and its intolerance towards arbitrariness but also by reason of the compelling need for doing complete justice which the Courts are obliged to do in each and every cause. The (Downloaded on 19/01/2023 at 12:27:40 AM) (7 of 10) [CW-27636/2018] States cannot in the discharge of their public duty and power to select and appoint State counsel disregard either the guarantee contained in Article 14 against non-arbitrariness or the duty to protect public interest by picking up the best among those available and willing to work nor can the States by their action frustrate, delay or negate the judicial process of administration of justice which so heavily banks upon the assistance rendered by the members of the Bar.
41. To sum up, the following propositions are legally unexceptionable:
41.3 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.
41.6 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.
41.7 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. 41.8 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.
41.9 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.
41.10 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.
47. Taking a cue from the provisions of Section 24, we are inclined to hold that what serves as a check on the power of the Government to appoint a Public Prosecutor can as well be a check on the appointment of the State Counsel also. That is because, while the Public Prosecutor's power under the Code of Criminal Procedure gives him a distinctive position, the office of a State Counsel, in matters other than criminal, are no less important. A State Counsel by whatever designation called, appears in important civil and constitutional matters, service and tax matters and every other matter where substantial stakes are involved or matters of grave and substantial importance at times touching public policy and security of State are involved.
To treat such matters to be inconsequential or insignificant is to trivialise the role and position of a State Counsel at times (Downloaded on 19/01/2023 at 12:27:40 AM) (8 of 10) [CW-27636/2018] described as additional and even Senior Additional Advocate General. What holds good for appointment of a Public Prosecutor as a check on arbitrary exercise of power must, therefore, act as a check on the State's power to appoint a State Counsel as well especially in situations where the appointment is unregulated by any constitutional or statutory provision. Such a requirement is implicit in the appointing power of the State which power is in trust with the government or the public body to be exercised only to promote public interest. The power cannot be exercised arbitrarily, whimsically or in an un-canalised manner for any such exercise will fall foul of Article 14 of the Constitution of India and resultantly Rule of law to which the country is committed.
49.2 The second aspect is about the process of selection and assessment of merit of the candidates by a credible process. This process can be primarily left to the State Government who can appoint a Committee of officers to carry out the same. It will be useful if the Committee of officers has the Secretary to Government, Law Department, who is generally a judicial officer on deputation with the Government as its Member-Secretary. The Committee can even invite applications from eligible candidates for different positions. The conditions of eligibility for appointment can be left to the Government or the Committee depending upon the nature and the extent of work which the appointees may be effected to handle. The process and selection of appointment would be fair and reasonable, transparent and credible if the Government or the Committee as the case may be also stipulates the norms for assessment of merit and suitability. 51.6 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."
10. Considering the affidavit filed by the RSRTC, wherein it is admitted that there is no standard policy for selection and appointment of Panel Lawyers which frustrates speedy justice, fair representation and also frustrates verdict of above quoted judgment of the Apex Court; considering the Circular dated 16/11/2022 issued by the Law & Legal Affairs Department of the State which states that effective representation has to be made in the litigation by the Govt. Counsels; the additional affidavit filed by Mr. Mahendra Shandilya, President, Rajasthan High Court Bar Association, Jaipur as well as the judgments rendered by the Apex (Downloaded on 19/01/2023 at 12:27:40 AM) (9 of 10) [CW-27636/2018] Court quoted above (supra), especially the case of Brijeshwar Singh (supra), this Court is inclined to take cognizance on the issue of appointment/engagement of government counsel/panel lawyers.
11. Let the Additional Affidavit filed by the Mr. Mahendra Shandilya, President, Rajasthan High Court Bar Association, Jaipur be treated as a Public Interest Litigation alongwith Circular dated 16/11/2022 issued by the Principal Secretary (Law) and additional affidavit filed by RSRTC. The Registrar (Judicial) is directed to register the same as Public Interest Litigation upon suo moto cognizance being taken by this Court based on the additional affidavit filed by President, Rajasthan High Court Bar Association, Jaipur, in accordance with Rules 385-P and 385-Q of Rajasthan High Court Rules, 1952 and the PIL may be titled as Rajasthan High Court Bar Association, through its President Vs. Union of India & Anr.,
12. The Registrar (Judicial) is directed to place a copy of this order alongwith concerned material for perusal before the concerned roster, as per directions of the Hon'ble Chief Justice, for further proceedings.
13. Mr. Shashank Agarwal, Advocate, is appointed as Amicus Curiae to pursue and assist the Court.
14. Let notices be issued to the learned Additional Solicitor General for Union of India and learned Advocate General for the State to address on the said issue before appropriate Bench having the subject roster as assigned by Hon'ble the Chief Justice.
15. Upon registration of the PIL, the name of Mr. Shashank Agarwal be reflected in the cause list as Amicus Curiae and names of Mr. Darsh Pareek, Adv. and Mr. C.S Sinha, Adv. be reflected in (Downloaded on 19/01/2023 at 12:27:40 AM) (10 of 10) [CW-27636/2018] the cause list on behalf of the State and Union of India respectively.
16. The Application (IA No. 4/2022) stands disposed of. The instant matter, S.B. Civil Writ Petition No. 27636/2018, be listed before appropriate Bench having the concerned roster.
(SAMEER JAIN),J Raghu/58 (Downloaded on 19/01/2023 at 12:27:40 AM) Powered by TCPDF (www.tcpdf.org)