The Allahabad High Court has dismissed a Public Interest Litigation (PIL) plea which challenged the appointment of the Advocates by the State Government.
The Division Bench of Chief Justice Pritinker Diwaker Justice Ashutosh Srivastava passed this order while hearing a PIL filed by Sunita Sharma and Another.
The writ (PIL) at the instance of two practicing Advocates of the Court has attempted to raise the issue regarding the system prevalent in the State of U.P in respect of engagement of Advocates by the State Government as Additional Advocate General (AAG), Additional Government Advocate (AGA), Additional Chief Standing Counsel (Addl. CSC), Standing Counsels (SC), Brief Holders Civil and Brief Holder Criminal.
It is the case of the petitioners that the State Government has made a large number of appointments to the above posts both at Allahabad and Lucknow Bench.
It is contended that such appointments have been made without following any procedure and ignoring the eligibility and competence.The appointment of lady Advocates upto the desired 30% has been completely ignored. Appointments have been given to the Advocates who had close proximity with the Government. The petitioners have desired that the appointment, having not been made in a fair and transparent manner, is required to be examined under a 5 Member Committee headed by a retired High Court Judge.
Accordingly it has been prayed that the respondents be directed to constitute a High Level Committee headed by a retired Judge of this Court, to enquire and examine the competency and eligibility of the appointees.
A further prayer in the nature of Mandamus commanding the respondent no 1 to fix the responsibility with regard to the irregularity and illegality in making the appointment and take appropriate action against the accountable person.
A further prayer for commanding the respondents to formulate the norms and procedure for making appointments by inviting applications and conducting interviews of the candidates by a Committee of 4 members headed by a retired Judge of this Court has been prayed for.
Manish Goyal, Senior Counsel and Additional Advocate General for the State of U.P submitted that the Advocates are coming forward to challenge the appointment of Advocates which does not sound to reason in as much as it is the prerogative of a litigant to choose his lawyer to represent him in a Court of Law and there can be no challenge to this. The State Government is also a litigant and as such is free to choose any and as many lawyers to represent in a Court of law. There can be no quarrel to this proposition.
It is contended by Manish Goyal that the writ (PIL) is nothing but a setup petition by those not given appointment.
It is also submitted that the list of the Advocates have been finalized, appointments have been made after due consideration by a Committee with the Advocate General as Chairperson and considering the Law laid down by the Supreme Court.
The petitioner has not approached the competent persons of the State and have straight away invoked the PIL jurisdiction of this Court. It is thus prayed that the writ (PIL) warrants dismissal at the threshold.
Having heard counsel for the parties and having perused the record we find that a writ PIL being PIL (Rama Shankar Tiwari @ Rama Shankar and others vs State of U.P through Principal Secretary Law, Justice, Civil Secretariat, Lucknow and others) has been entertained by a Coordinate Bench of the Court. The said PIL raises identical issues as raised in the present PIL, the Court observed.
The Court noted that,
In respect of the Brief Holders the Apex Court observed as under:
“21. Coming now to the High Court’s order setting aside the government order dated May 26, 1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate-General who is its own officer and from among the advocates of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are overworked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.”
The Apex Court thereafter proceeded to hold that the direction given by the High Court to the Government to continue the system of Brief Holders is unjustified and quashed the same. The Apex Court further set aside the order of the High Court quashing the fresh appointments and directing payments to the officers whose appointments were terminated.
In view of the above and particularly the fact that a coordinate Bench of the Court is already seized of the issues raised in this petition as noticed herein above, we are not inclined to entertain the writ PIL, the Court further observed while dismissing the PIL.