5 Aug 2021 3:42 PM GMT
A Division Bench of the Jammu and Kashmir High Court has stayed the interim order passed by a single-judge, staying fresh appointment of Law Officers (other than the Advocate General) in the Union Territory.A bench of Chief Justice Pankaj Mithal and Justice Puneet Gupta remarked that the single-judge transgressed the limits of judicial review in passing the impugned stay order."When...
A Division Bench of the Jammu and Kashmir High Court has stayed the interim order passed by a single-judge, staying fresh appointment of Law Officers (other than the Advocate General) in the Union Territory.
A bench of Chief Justice Pankaj Mithal and Justice Puneet Gupta remarked that the single-judge transgressed the limits of judicial review in passing the impugned stay order.
"When no appointment/engagement of lawyers has been made by the Government, the Court exceeded its power of judicial review and to pass a stop-order on the appointments which is apparently without jurisdiction as at one place the Court refers the matter to the Chief Justice for treating it as a Public Interest Litigation and, at the other, makes observations on the merits so as to pass the interim order," the order states.
The Deputy Legal Remembrancer, Department of Law Justice and Parliamentary Affairs had issued an advertisement inviting applications for engagement of Standing Counsel at districts courts. The advertisement prescribed 30 marks for Experience, 10 marks for Higher Qualification than the Degree of Law, 50 marks based on legal work done in courts such as instituting suits/filing of defence and 10 marks for professional achievements, awards etc.
The single Judge (Justice Sanjeev Kumar) had stayed appointment of fresh Law Officers while observing that allocation of 10 marks to qualification higher than LL.B is apparently irrational and does not seem to have any nexus with the job. The Judge had also observed that the advertisement prima facie is not bad yet conditions therein would pose practical difficulties in its application and, therefore, requires reconsideration.
Accordingly, the single judge posted the matter before the Chief Justice for listing before an appropriate Bench and directed that till the matter is pending, no fresh appointment of Law Officers shall be made other than the Advocate General.
In an appeal challenging the single Judge order, Advocate General DC Raina and AAG Aseem Sawhney argued that while recusing to hear the writ petition and directing it to be treated as a PIL, the single Judge proceeded to comment on the merits of the case. It was also argued that the impugned interim order is patently without jurisdiction, as it could not have been passed once the Judge had declined to hear the petition.
On the other hand, Advocate D. Singh Bandral, appearing for the Respondent, contended that the criteria laid down under the impugned advertisement for appointment of the Law Officers is faulty and that such appointments must be transparent. Urging to quash the advertisement , he argued that the said criteria do not bear any nexus with the object sought to be achieved.
The Division Bench noted that the single judge had himself acknowledged that engagement of any lawyer if done in any arbitrary fashion without adopting the transparent method of selection would be amenable to judicial review but it would be limited to examine whether the process is affected by any illegality, irregularity or perversity. The single Judge had also noted that the Court exercising judicial review would not sit in appeal and reassess the merit of the candidates.
In the instant case however, the Division Bench noted,
"when no appointment/engagement of lawyers has been made by the Government, the Court exceeded its power of judicial review and to pass a stop-order on the appointments..."
It relied on the judgment in State of Punjab & Anr. v. Brijeshwar Singh Chahal & Anr., where it was held that Government and public bodies are free to choose the method of selecting best lawyers, but such selection ought to be unaffected by any extraneous considerations and that no lawyer has any vested right to be appointed, reappointed or to seek an extension of term and that all such claims should be considered on merits, uninfluenced by political or other extraneous considerations.
The Court has now directed that the present appeal be listed along with the PIL registered in pursuance of the impugned order and the Respondents may file their response, if they so desire.
The matter is now listed on August 23, 2021.
Title: Union Territory of Jammu and Kashmir and Others v. Sushil Chandel
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Edited by Akshita Saxena
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