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Allahabad HC pulls up UP govt for not following SC directions in appointing law officers

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The Allahabad High Court has directed the Uttar Pradesh Government to file a counter affidavit/affidavit to be sworn by none other than the Principal Secretary, Law/ Legal Remembrancer stating what steps are being taken to ensure directions of the Supreme Court in the case of Brijeshwar Singh Chahal (supra) are implemented in appointing law officers.

The Court was hearing a Public Interest Litigation challenging the recent appointments of state law officers.

The affidavit to be submitted shall give a complete scheme of selection and appointment of Government Advocates which shall ensure the process to be more transparent, fair and objective.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Shree Prakash Singh heard the PIL filed by Rama Shankar Tiwari Alias Rama Shankar and others.

The PIL filed by three practicing lawyers of the Court engages our attention to the system prevalent in the State of Uttar Pradesh relating to engagement of Advocates by the State Government as also by other State undertakings/ instrumentalities.

The Court observed,

As far back as in 1991, the Supreme Court in case of Kumari Shrilekha Vidyarthi and other Vs State of UP and others, reported in (1991) 1 SCC 212 has noted, inter alia, that it is always the prerogative of a litigant to choose his client including the Government, however, the matter of engagement of counsels/ advocates by the State Governments or State instrumentalities does involve public law element for the reason that ultimately the remuneration paid to the Government Law Officers is charged on the State exchequer.

Abhinav N Trivedi, Chief Standing Counsel representing the State-respondents has, at the outset, raised a preliminary objection regarding maintainability of the petition stating that the instant Public Interest Litigation at the instance of the petitioners who are practicing lawyers, is not maintainable for the reason that there is nothing on record which can suggest that they have made any contribution towards welfare of the lawyers in general.

It has also been submitted that one of the requirements in terms of Chapter XXII Rule 1(3-A) of the High Court Rules for filing the Public Interest Litigation (which was inserted in the Rules of the Court in compliance of the judgment rendered by the Supreme Court in the case of State of Uttaranchal vs. Balwant Singh Chaufal, reported in (2010) 3 SCC 402) is that a declaration has to be made by the person filing the Public Interest Litigation that there is no authoritative pronouncement by the Supreme Court or High Court on the question raised and since there are various pronouncements not only by the Supreme Court but also by the Court on the legal issue involved in the petition, hence for want of fulfillment of requirement in this regard as per Rule 1(3-A) of Chapter XXII of the Rules, the petition is not maintainable.

The Court further observed,

The petitioners are practicing lawyers of the Court having to their credit considerable length of practice. All the petitioners are members of Oudh Bar Association and are also enrolled as AORs with the High Court. Their concern about the transparency, fairness and objectivity in the matter of engagement of State lawyers cannot be doubted. Accordingly, the first submission regarding maintainability of the petition raised by the Chief Standing Counsel merits rejection which is hereby rejected.

So far as the other submission made by Trivedi regarding declaration that there is no authoritative pronouncement by the Supreme Court and by the Court on the issue engaging attention of the Court in the case, is concerned, we may only observe that the authoritative pronouncement by the Supreme Court and even by the Court may have been rendered in past on the issue as to how and in what manner engagement of lawyers by the State Government may be done, however, as to whether such pronouncements faithfully and in all earnest are being followed and honoured and respected is the question which requires our consideration in the case.

Accordingly, the Court rejected the second submission as well raised by the Chief Standing Counsel regarding maintainability of the petition.

Counsel for the petitioners have stated that so far as the prayer relating to quashing of the order of engagement of the Government Advocates (which expression shall hereinafter cover the Advocates engagement by the State, both on Civil and Criminal side) is concerned, at the moment concern of the petitioners is more towards ensuring the process of engagement of the Government Advocates to be more transparent, fair and objective and accordingly the prayer may be permitted to be not pressed.

However, it has been submitted by the counsel for the petitioners that despite giving undertaking repeatedly before the Court by the State Government to follow and implement the dictum of the Supreme Court in the case of State of Punjab and another vs Brijeshwar Singh Chahal and another reported in (2016) 6 SCC 1, the State Government has acted in complete derogation of the directions contained in the said judgment. Such an act, as submitted by the counsel for the petitioners, of the State Government is not only unjust but in fact amounts to defiance of the directions issued by the Supreme Court.

When the Court perused the aforesaid judgments and orders as relied upon by the counsel for the petitioners, what the Court found that consecutively undertakings have been extended to the Court by the State Government to follow the guidelines laid down in the case of Brijeshwar Singh Chahal (supra). It may be noticed, at this juncture itself, that the case of Brijeshwar Singh Chahal (supra) was decided in the backdrop of the issues related to engagement of the Government Advocates by the State of Punjab and State of Haryana.

The Court said,

It is to be noticed and we wish to remind the State Government that in terms of the provisions of Article 141 of the Constitution of India, law declared by the Supreme Court is binding on all Courts within the territory of India. However, we also notice Article 144 of the Constitution of India which clearly mandates that all authorities, Civil and Judicial, in the territory of India shall act in aid of the Supreme Court. We, thus, are of the opinion that if any direction has been issued or any observation has been made by the Supreme Court on a particular subject with which any Civil or Judicial authority within the territory of India is concerned, it is mandatory for such Civil or Judicial authority to act in aid of the Supreme Court, that is to say that they are duty bound to act in conformity with the observations and directions issued by the Supreme Court.

The directions by the Supreme Court for reforming the system of selection and appointment of Government Advocates with a view to make the same more transparent, fair and objective, was issued way back on 30.03.2016 in the case of Brijeshwar Singh Chahal (supra). More than six and half years have elapsed since then, however, no concrete steps appear to be in sight which the State Government might have taken to reform the system of selection and appointment of the State Law Officers.

At this juncture, Abhinav N Trivedi, Chief Standing Counsel has stated that for making recommendations for appointment as State Law Officers, the State Government constituted a Committee comprising of three high level officers of the State Government and appointments by means of the order dated 01.08.2022 were made in view of the recommendation made by the said Committee.

The Court understands that for regulating the appointment of Government Law Officers in the State of UP, LR Manual is in place. However, as observed by the Supreme Court, since there exists a need to make the system more transparent, fair and objective, the State Government, in compliance of the judgment and order of the Supreme Court in the case of Brijeshwar Singh Chahal (supra), was/is expected to evolve a system/policy so that it is in tune with the observations made by the Supreme Court in the said case.

The Court, thus, call upon the State Government to file counter affidavit/affidavit to be sworn in by none other than the Principal Secretary, Law/ Legal Remembrancer himself stating therein as to what steps are being taken/proposed to be taken for ensuring that observations and directions of the Supreme Court in the case of Brijeshwar Singh Chahal (supra) are implemented in their true spirit.

The Court further said,

The affidavit to be submitted under this order shall give a complete scheme of selection and appointment of Government Advocates which shall ensure the process to be more transparent, fair and objective.

Transparency, fairness and objectivity are the hallmarks of the present day administration and our Society has to take strides to ensure that administration is more transparent and that it functions more objectively. Accordingly, we require that an affidavit to be filed under this order shall touch upon all the aspects of the selection and appointment of the Government Advocates which may include assessment of need, eligibility, equal opportunity process of selection and all other related and auxiliary aspects.

The Court shares the concern of the petitioners that the entire process should be more transparent and objective. While filing the affidavit, the endeavour of the State Government, in our opinion, should be to ensure that the process to be evolved henceforth does not lack transparency and objectivity. The said affidavit shall be filed within a period of six weeks after serving a copy thereof upon the counsel for the petitioners who shall file rejoinder affidavit by the next date of listing.

The Court has fixed the next hearing of the petition on October 17, 2022.

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