From Merit-Based Selection To Women's Representation: Allahabad High Court Issues Guidelines On UP State Law Officers' Appointments

The Allahabad High Court (Lucknow Bench) issued strict 8-point guidelines on Monday for appointments of the State Law Officers in Uttar Pradesh.

The Court has strictly directed the State Government to ensure that a transparent, merit-based selection process is in place and that there is adequate representation of women advocates, subject to availibility.

The Court has strictly directed the UP Government to conduct an assessment regarding the need for the officers before making appointments and to scrutinize the professional integrity and criminal antecedents of prospective appointees.

The Court also directed that, to the extent permissible, the selection process, including eligibility criteria and assessment, be made public.

A Bench of Justice Rajesh Singh Chauhan and Justice Rajeev Bharti issued these guidelines while dealing with 3 connected matters which raised concerns regarding the appointment of Government Advocates and other State Law Officers in Uttar Pradesh.

Notably, in all 3 writ petitions, the petitioners prayed that the State Government formulate guidelines for appointing State Law Officers.

The directions apply to Government Advocates, Additional Government Advocates, Chief Standing Counsel, Additional Chief Standing Counsel, Standing Counsel and Brief Holders (civil and criminal).

Cases background

In 2017, the State issued a list of Government Counsel/Advocates, which was challenged before the High Court. The State subsequently issued a revised list on October 23, 2017.

Another PIL was filed in 2022 raising substantially similar concerns and seeking compliance with the principles laid down by the Supreme Court in State of Punjab v. Brijeshwar Singh Chahal.

The High Court then directed the State to place on record the steps it was taking to make the appointment process more transparent, fair, and objective. The State was also asked to specify if it had assessed the parameters of need, eligibility, equal opportunity and the selection process.

One petitioner also challenged the State's 2023 list on the ground that he had applied for appointment as a State Law Officer in 2017. However, the State issued no public notice or advertisement and made no objective assessment of the requirement before appointing a large number of Government Counsel.

High Court's observations

In its 38-page order, the High Court considered the State's argument that the Supreme Court's judgment in Brijeshwar Singh Chahal could not be directly applied to Uttar Pradesh.

The Bench agreed that the Chahal judgment could not be applied mechanically to UP because the Supreme Court considered a different factual and regulatory framework.

The Court also noted that Uttar Pradesh already has a Legal Remembrancer's Manual which governs the appointments and the state also has a committee for scrutiny of candidates.

However, the Court made it clear that while the number and method of appointing State Law Officers remain within the State's domain, the appointments must still be based on merit.

"We also make it clear that we are not commenting upon the total number of State Law officers or how they should be appointed; that's totally the State's domain to work on; but whatever method is adopted, it must be shown that the appointments were made only on the basis of the merit and not for any other consideration", the bench remarked.

In its order, the Court found that the State failed to place sufficient material showing that it had undertaken a reasoned assessment to determine the approximate number of State Law Officers required to effectively conduct State litigation.

It held that although the State has discretion in determining the number of law officers, that discretion cannot be exercised "arbitrarily, mechanically or merely for the purpose of appeasement, nor can it can be permitted to result in unnecessary or excessive appointments at the cost of the public exchequer".

The bench added that when such discretion is questioned, the State must be able to demonstrate the basis, criteria, and methodology used to make the appointments.

The Bench also expressed concern over the absence of an adequate safeguard in the Legal Remembrancer's Manual concerning persons facing serious criminal proceedings.

The Court noted that an RTI query seeking information about criminal cases pending against Standing Counsel had received a response describing the question as 'misleading'.

It observed that it could not understand how an inquiry into the criminal antecedents of a person proposed to be appointed as a State Law Officer could be regarded as misleading.

The Court further found that the LR Manual did not prescribe any disqualification for appointment or continuation of a State Law Officer on account of serious criminal cases pending against him, nor did it adequately address assessment of the suitability of such a person.

It emphasized that a State Law Officer represents the State and assists the Court in the administration of justice and hence, the appointments cannot be divorced from considerations of integrity, criminal antecedents, professional conduct and public confidence.

"If scrutiny of criminal antecedents is warranted in respect of advocates generally, there can hardly be any justification for subjecting State Law Officers to a lesser degree of scrutiny. Rather, the standard ought to be higher", the bench remarked.

The Bench also examined the appointment of six Chief Standing Counsels. It noted that Paragraph 5.01 of the Legal Remembrancer's Manual provides for one Chief Standing Counsel for the Allahabad High Court and another for its Lucknow Bench, apart from such number of Standing Counsel as the Government may appoint.

The Court said it could not ascertain from the material before it why 6 Chief Standing Counsels had been appointed, as the State had furnished no explanation.

At the same time, it clarified that, in an appropriate case, the workload and administrative requirements of the High Court could justify appointing more than one Chief Standing Counsel.

Any such appointment, however, must be supported by a reasonable and objective assessment of actual need and workload, the bench said.

The Court clarified, however, that its observations were not intended to adversely affect or disturb appointments already made. The Court said the deficiencies identified were to be considered when making future appointments.

The Court ultimately carved out 8 guidelines and directed that the State Government strictly follow them while appointing State Law Officers. The guidelines are as follows:

1. Undertake a need-based assessment of the number of State Law Officers required for efficient conduct of State litigation.

2. Prescribe clear, objective and transparent eligibility and selection criteria, considering professional experience, competence, integrity, behaviour and suitability.

3. Ensure that persons having criminal antecedents or undesirable behaviour are not appointed as State Law Officers.

4. Extend the workload assessment mechanism under Paragraph 4.19 of the LR Manual to all categories of cases, rather than confining it to criminal cases.

5. Ensure that the entire selection and appointment process, including eligibility criteria and assessment, is transparent and placed in the public domain, to the extent permissible.

6. Ensure adequate representation of women advocates, subject to their availability.

7. Require any FIR or criminal case registered against a State Law Officer to be forwarded without delay to the Advocate General for information and necessary action.

8. Require a State Law Officer appearing against the State, particularly where the State is a party or opposite party, to obtain a No Objection Certificate (NOC) from the competent authority and annex it to the Vakalatnama.

The Court clarified that the restriction relating to representation against the State would not apply to Brief Holders and would remain subject to the relevant provision of the LR Manual.

The Court also directed the State Government to examine whether a State Law Officer may contest or participate in elections to a Bar Association or Bar Council while continuing in office.

The Court directed the Government to consult relevant stakeholders before taking an appropriate decision and, if necessary, issue suitable directions.

The Court accordingly disposed of the three connected petitions in these terms.

Apperances

Advocate Chandra Bhushan Pandey, assisted by Advocates Tripti, Arundhati Thakur and Asim Kumar Singh, for the petitioner in WPIL No. 16009 of 2017;

Advocate Arun Kumar Tiwari, appeared in person as an intervenor in WPIL No. 16009 of 2017;

Petitioner in person Mahendra Nath Rai, appeared in Writ-C No. 31400 of 2017;

Advocate Alok Kirti Mishra, assisted by Advocate Rama Shankar Tiwari, appearec in person;

Advocate Dharmesh Kumar Dwivedi for the petitioners in WPIL No. 527 of 2022;

Advocate General of Uttar Pradesh Ajay Kumar Mishra, assisted by Additional Advocates General D.V. Singh and Kuldeep Pati Tripathi, Chief Standing Counsel Shailendra Kumar Singh, Additional Chief Standing Counsels Vivek Shukla and Ishan Mehta, and Standing Counsel Yogesh Kumar Awasthi, for the State respondents.