Sunday, December 3, 2023

Money down the Drain

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In a startling revelation, the Supreme Court has found that states are spending huge amounts on law officers without proper systems being put in place. Loyalty, more than merit, is amply rewarded

By Vipin Pubby in Chandigarh

The largesse doled out by state governments has come under scrutiny. This generosity by way of arbitrary appointments of law officers to deal with cases relating to states in high courts has caught the attention of the
Supreme Court.

While hearing a clutch of petitions challenging the appointments, the Court, which has now reserved its ruling, has come across startling facts. Not only are there no set rules for the appointment of additional advocate-generals (A-Gs), senior deputy A-Gs and deputy A-Gs, state governments had been spending huge amounts on a large number of advocates appointed to these positions.

Haryana, for instance, has 183 law officers, which includes 58 additional A-Gs, one senior deputy A-G, 62 deputy A-Gs and an equal number of assistant A-Gs, as per an affidavit given by the state to the apex court last month. Punjab is not far behind, with as many as 174 law officers who were also appointed without any norms in place. It has a team of 74 additional A-Gs, five senior deputy A-Gs, 40 deputy A-Gs and 55 assistant A-Gs. In contrast, the center has a team of less than a dozen law officers in the Supreme Court led by Attorney-General of India Mukul Rohatgi.
A majority of these state lawyers have not been appointed on merit or experience. In fact, most are related to politicians, senior officers, judges, senior advocates and other influential people. One of those appointed in Haryana is a relative of the chief minister and did not even fulfil the norms to practice in the High Court. The Bar Council of India has fixed a minimum experience of two years in a sessions or district court for being eligible to appear in high courts.

The Haryana government affidavit also details the emoluments given to these officers. Additional A-Gs are paid a monthly remuneration of `1.40 lakh and entitled to leave as admissible to Class I officers, except earned leave. They are on contract for one year, which is renewable every year. They are entitled to do private practice but are barred from appearing against the state.

Deputy A-Gs are put on regular pay scales, with entry-level salaries being a minimum of `43,390, plus the usual allowances, including house rent allowance and TA/DA, as admissible to state government emplo-yees. Assistant A-Gs have an entry-level minimum pay starting at `28,000, plus the usual allowances.

Details of the official expenditure calculated by the Haryana’s A-G office show that the state incurs a monthly expenditure of around `70,235 on an assistant A-G, `85,000 on an additional A-G, `90,000 on a senior additional A-G, `1,00,575 on a deputy A-G, and `1,00,675 on a senior deputy A-G. It also spent `18.71 crore on the state A-G’s office between April 1, 2012, and January 31, 2013, as per official figures of a CAG report in 2014.
The report also said that about 80 percent of the law officers don’t have adequate work most of the time. It questioned the “faulty selection of law officers resulting in idle payment of salary”.

In its reply to CAG’s objections, Haryana had justified the appointments, citing several court judgments, including some from the Supreme Court. “It is the choice, prerogative and discretion of the government to engage such law officers to defend and plead their cases through whom it has faith, confidence and trust, which may be based on word of mouth and performance,” it said.

In its latest affidavit submitted to the Supreme Court, the state informed that the A-G is the only validated post of law officer and the “engagement of law officers are not governed by any rules and regulations”. It added that their engagement is primarily on the basis of recommendations made by the A-G. The affidavit admitted that no search or selection committee had ever been constituted to invite applications and scrutinize the names and that it was left to the “discretion” of the A-G to select his team of officers.
SC Bench led by TS Thakur said appointments of law officers must be transparent


The affidavit was submitted days after the court slammed the Punjab government over appointment of law officers. A bench led by Justice TS Thakur had said such appointments cannot be an act of “political appeasement” and must be transparent. The court had questioned the process for such appointments in states as it appeared that political connections outweighed merit. It asked Solicitor-General Ranjit Kumar, who was assisting the court as amicus curiae, to find out whether any state had laid down procedures for selection of law officers.

Punjab government, in its affidavit, had said that “conventionally, law officers are engaged on contractual basis after being recommended by the advocate general or in consultation with him. The advocate general recommends to the state government those lawyers who are competent and best suited to carry out the onerous and multi-faceted tasks of law officers”.

The issue came up before the apex court following a petition filed by advocate Pradeep Rapria, who had challenged the appointment of law officers in the A-G office, Haryana. This was done after the Punjab and Haryana High Court, which had heard his plea, adjourned the case sine-die. In his petition before the Supreme Court, Rapria argued that loyalty to the ruling party, and not legal acumen, had become the deciding factor in the appointment of government advocates. Integrity, capabilities, honesty and efficiency of lawyers were secondary to loyalty to the party in power.
In his affidavit, he said that he had filed the petition “against the arbitrary and illegal engagement of Advocates in the AG office, Haryana, on pick and chose basis, without any supporting legislation or Rule, Notification, guideline, norms, which is clearly in violation of Article 14 of the Constitution of India. In response to the RTI query, the State Govt. has informed the Petitioner that there is no specified qualification or rule dealing with the engagement of Advocates in the AG Office and even no application was ever received from the engaged Advocates. Therefore, there was no occasion for the State Govt. to apply mind on the merits of the Advocates engaged in the AG Office, who deal with the Fundamental Rights and other vital rights of the citizens in the High Court”.

The petitioner submitted that the state exchequer is held by the state as a trustee of the citizens. Remuneration to such state counsels from the state exchequer amounts to state largesse, which cannot be given to any person according to the sweet will and whims of political entities. He pointed out that no applications were sought and there was no specified qualification or rule dealing with the engagement of advocates in the A-G office. Rapria further said in his petition: “In the democracy, the government cannot behave like a King, who can give benefit to any person as per his whims and fancies.”

Senior advocates in the Punjab and Haryana High Court pointed out that though the appointments of some law officers are justified, the numbers appointed by both states is far higher than required. They also stressed that an improvement in the quality of lawyers appointed for such posts could cut down on the need for so many appointees.
It is hoped that the Supreme Court will issue guidelines to bring some order in these appointments.

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