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14. From the two affidavits filed by the States it is manifest that no procedure for selecting practising advocates for appointment as law officers has been prescribed in the States of Punjab and Haryana. No Selection or Search Committee is constituted or is even envisaged. It is also clear that the two Governments do not consult the High Court before finalizing the list of appointees. The affidavits do not at the same time indicate as to how in the absence of any Selection or Search Committee the State Government ensures a fair selection in which they pick-up the best available and willing to accept the assignment as State counsel. The affidavits place the burden of making the process of fair selection upon the wisdom of the Advocates General of the two States. The affidavits do not state whether the Advocate General, has, in turn, constituted a Committee or followed any procedure or prescribed or formulated any norms for assessing the merit of those willing to work as State counsel. The affidavits do not even say if any applications are invited for appointment as State counsel. All told, the appointments are based entirely on how the Advocate General advises the State Government on the subject without the Advocate General in turn conducting a selection process, assessing inter se merit on an objective basis or maintaining any record of any such process having been undertaken. The affidavits also do not rule out the possibility of the Governments themselves appointing persons over and above those recommended by the Advocate General on the basis of what the Affidavit of the State of Punjab describes as “discreet enquiries”. The affidavits suggest that the process has been going on for past many years. 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.

46. 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.

47. The third stage of the process of selection and appointment shall in the absence of any statutory provisions regulating such appointments involve consultation with the District & Sessions Judge if the appointment is at the district level and the High Court if the appointment is for cases conducted before the High Court. It would, in our opinion, be appropriate and in keeping with the demands of transparency, objectivity and fairness if after assessment and finalisation of the selection process a panel is sent to the Chief Justice of the High Court concerned for his views on the subject. The Chief Justice could constitute a Committee of Judges to review the names recommended for appointment and offer his views in regard to professional competence and suitability of candidates for such appointments. Appointments made after such a consultative process would inspire confidence and prevent any arbitrariness. The same procedure could be followed where candidates are granted extension in their terms of appointment in which case the Committee appointed by the government and that constituted by the Chief Justice could also look into the performance of the candidates during the period they have worked as State counsel.