Appeal No. 544 2007 (Arising out of SLP (Crl) No.912 of 2006)
Dr.Arijit Pasayat, J
This petition under
Article 32 of the Constitution of India, 1950 (in short the
'Constitution') has been filed by the Supreme Court Bar Association
raising points of considerable importance. It is the case of the writ
petitioner that appointment of a retired Judge as Chairman of the
concerned State Legal Service Authority in different States falls foul
of the desired legislative effect. It is stated that appointment of
retired Judges has the effect of stalling the effectiveness in
functioning of the State Legal Service Authorities. With reference to
Section 6(2) of the Legal Services Authorities Act, 1987 (in short the
'Act'), it is pointed that the serving or retired Judge of the High
Court can be nominated by the Governor in consultation with the Chief
Justice of the High Court. The writ petitioner has pointed out that
under the Act the State Government is required to constitute a body to
be called the Legal Service Authority of the State to exercise the
powers and/or assigned to State Authority under the Act. Sub-section (2)
of Section 6 provides that the State Authority shall consist of the
Chief Justice of the High Court who shall be the Patron-in-Chief and a
Judge of the High Court to be nominated by the Governor in consultation
of the Chief Justice of High Court who shall be the Executive Chairman.
encountered in case a retired Judge is appointed as a Chairman, have
been highlighted by the writ-petitioner. Most of the States and the
Union Territories have accepted the genuineness of the problems
highlighted in the writ petition. It is to be noted that except four
States i.e West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other
States and the Union Territories a sitting Judge is functioning as
Executive Chairman. In the State of Orissa prior to passing of the
impugned order dated 12.1.2007 a retired Judge had been appointed as the
Executive Chairman. In line with the order dated 12.1.2007 presently in
the State a retired Judge is functioning as the Executive Chairman. One
of the main grievances of the writ petitioner-association is that there
is scope for favouritism in case a retired Judge is appointed in
preference to a sitting Judge. Several instances have been highlighted.
In its affidavit filed by the National Legal Service Authority (in short
'NALSA'), it has been accepted that the functioning of the State Legal
Service Authorities where retired Judges have been appointed as Chairmen
is not satisfactory. The averments in the writ petition which need to be
highlighted is as follows:
"Whereas in regard to the State Legal Authority alone, strangely, the
head need not be a sitting High Court Judge. The relevant provisions of
the Act regarding State Legal Service Authority contained in Section
6(2) are as follows:
"(2) A State
authority shall consist of-
(a) the Chief Justice of the High Court who shall be the
(b) A serving or
retired Judge of the High Court, nominated by the Governor, in
consultation with the Chief Justice of the High Court, who shall be the
Executive Chairman; and
(c) such other
members, possessing such experience and qualifications as may be
prescribed by the State Government, to be nominated by the Government in
consultation with the Chief Justice of the High court."
The Authority could
be headed by a retired judge of the High Court. For a retired judge, the
Act does not prescribe any upper age-limit. In regard to every other
Tribunal, the Act concerned itself prescribes the upper age limit as 68
years or 5 years tenure. This Act alone does not prescribe any age
limit, or a limited tenure, when it comes to a retired judge. For a
sitting judge all limitations as to age etc. come automatically since he
would hold the post ex officio.
The position of the
chairperson of Legal Services Authority at State Level is very crucial.
A sitting judge will be a far better person and he can exercise his
powers more effectively compared to a retired Judge. Since the head of
National Legal Services Authority has to be the Chief Justice of India
and the head of the District Legal Services Authority has to be the
District Judge, the scheme of the Act should be understood to be that
the head of the State Legal Services Authority also should be a sitting
Judge of the High Court.
provision appears to suggest that the Ist choice has to be a sitting
Judge, and only when it is not possible to appoint a sitting Judge, in
the alternative, a retired Judge could be considered. The State Govt.
cannot avoid a sitting Judge and go in for a retired Judge straight
Even otherwise, when
one analyses functions of the State Legal Services Authority, it would
be more appropriate to have a sitting Judge as its head for effective
implementation of the objects of the Act. The following are the main
functions of the Legal Services Authority at the State Level:
(a) To give effect to the policy and directions of the Central
(b) Give legal service to persons who satisfy the criteria laid down
under this Act;
(c) Conduct Lok Adalats;
(d) Undertake preventive and strategic legal aid programmes; and
(e) Perform such other functions as the State Authority may, in
consultation with the Central Government, fix by regulations.
Most of the
functions are intrinsically interwoven with the duties and the powers of
the High Court under Article 235 and other Articles of the Constitution.
Even if it is felt that a retired Judge may be of help, one retired
Judge could be accommodated as one of the members of the State Legal
The petitioner has
come to know that in various States in the country there is a move to
take away the Legal Services Authority from the control of the
respective High Court."
It is submitted that
even where retired Judges are appointed to head the Commission, it
becomes a never-ending process.
In the affidavit
filed by NALSA it has been stated as follows:
"It is the respectful submission of NALSA that on a true interpretation
of the provisions of the Act, its Preamble and Statements of Objects and
Reasons on one hand and the Constitutional Scheme under Article 39A and
Article 21 and the law declared by this Hon'ble Court on the other,
demand that it would be not only just and proper but desirable to
nominate a serving Judge of the High Court by the Governor, in
consultation with the Chief Justice of the High Court, to be the
Section 7 of the Act
lays down the "functions of the State Authority" which include besides
effectuating policy and directions of the Central Authority the
(a) give legal service to persons who satisfy the criteria laid down
under this Act;
(b) conduct Lok Adalats; including Lok Adalats for High Court cases;
(c) undertake preventive and strategic legal aid programmes; and
(d) perform such other functions as the State Authority may, in
consultation with [ Central Authority,] fix by regulations.
Section 8 requires
the State Authority to act in coordination with other Governmental
Agencies, non-Governmental Voluntary Service Institution, Universities,
other bodies engaged in a work of promoting the cause of Legal Services
to the poor as also with the Central Authority.
It is submitted that
the Objectives underlying Sections 7 & 8 may be better achieved with the
Constitution of the State Authority in a manner so as to nominate a
sitting Judge as its Executive Chairman. It is respectfully submitted
that a Sitting Judge of the Hon'ble High Court may be able to deal more
effectively with Judicial Officers, Government Officials and
Departments. Furthermore, if the nomination of a retired Judge as the
Executive Chairman becomes a rule rather than the exception, it will
become another office to be offered to a retired Judge who will not be
in a position to effectively deal with NGOs, Government Authorities or
the Judicial Officers including District Judges and even to persuade the
sitting Judges to participate in the Legal Aid Programmes and activities
of the State Authority.
It is further
submitted that under the Act Permanent Lok Adalats have to be set up in
the Government Departments. For this purpose, the Executive Chairman has
to interact with the Chief Ministers and other Ministers and the Hon'ble
Chief Justice of the concerned High Court. Interaction between a sitting
Judge and the Chief Justice can be more effective and fruitful.
xx xx xx xx
It is submitted that to the best information of NALSA, as at present,
four States have nominated retired High Court Judges to be the Executive
Chairman of State Authorities constituted and working in those States.
These States are Meghalaya, Uttrakhand, Uttar Pradesh and West Bengal
having issued Notification accordingly on 15.7.1998, July 2003,
20.12.2004 and 10.8.2005 respectively."
Solicitor General appearing for the Union of India has stated that the
stands taken in the writ petition merit acceptance.
allegation of any preferential treatment has been denied in the
affidavits of all States, we would like to illustrate the State of
Orissa's case. The fact situation is quite disturbing. This Court
directed production of file relating to appointment of the retired Judge
as Executive Chairman. The Registrar of the Orissa High Court in a
communication to this Court stated that there was no file available in
the High Court and he had collected copies of certain documents from the
Principal Secretary of the Chief Justice of the High Court.
This Court by letter
dated March 30, 2007, sought for clarification as to under what
circumstances record/file was not maintained and as to how the documents
were in the possession of the Principal Secretary without they being
brought on record. The statement of the Principal Secretary is very
revealing and disturbing. The relevant parts of the statement read as
"That on 13.12.2006
the then Hon'ble Chief Justice ( xxx xxx xxx xxx) directed me to give an
Issue Number of the Issue Register maintained by me in the residential
office of Hon'ble Chief Justice.
Accordingly, I gave
a Number of my Issue Register bearing No.538/C.J.Res. Dated 13.12.2006
to Hon'ble the then Chief Justice. Since I was not aware of the contents
of the letter to be dispatched in order to make the required entry of
the subject-matter of the letter in the relevant column of the Issue
Register maintained in the residential office of Hon'ble C.J. against
the next serial number which I mentioned before Hon'ble Chief Justice on
13.12.2006, I humbly requested His Lordship to indicate the
subject-matter and the name of the address of the letter. Thereupon His
Lordship was kind enough to disclose the subject-matter and the name of
the addressee to me which I mentioned in the Issue Register.
That I am to humbly
state that my assistance was not at all taken in the preparation/typing
out of the letter issued under the above dispatch Number.
That some times
confidential letters are issued by the Hon'ble Chief Justice and for
that purpose an Issue Register is maintained in the residential office
of Hon'ble Chief Justice and office copies of all such letters issued
from the residential office of Hon'ble Chief Justice are kept in the
residential office files.
I, therefore, humbly
request the Hon'ble Chief Justice for the office copy of the said letter
since the Issue Number was given from the Issue register maintained in
the residential office of Hon'ble Chief Justice, but the office copy of
the said letter was not given to me on that date, which fact I have
reflected in the Issue Register to the effect that "office copy of the
letter is with Hon'ble C.J.".
It is humbly further
stated that only on 17.1.2007 Hon'ble the Chief Justice made over the
office copy of the D.O. letter No.538/C.J.Res dated 13.12.2006 to me
along with letter No ..-L dated 8.12.2006 written by (xxx xxx xxx)
Minister of Law to the Hon'ble Chief Justice and His Lordship directed
me to keep the said two letters in a separate file. Accordingly I had
kept the above two letters in a separate file. But in regular course of
my official business, I have also reflected the fact of receipt of the
office copy of the said letter on 17.1.2007 in the Issue Register. The
true xerox copy of the relevant page of the Issue Register is annexed to
this Statement as Annexure-I for favour of kind perusal.
That on getting the
copy of the D.O.letter No.538/C.J.Res dated 13.12.2006 issued by Hon'ble
the Chief Justice to the Law Minister, I found that the D.O. Number and
the Date have been mentioned on the right side of the letter by hand by
the Hon'ble Chief Justice. Normally we put the D.O. Number on the left
side and the Date on the right side of the letter by typing out the
same. Another aspect I noticed that when we type out any letter in
computer, we justify the right side margin of the letter, but that was
not done in the said D.O. letter." (underlined for emphasis)
It is not understood
as to how and why the letter was not typed in the residential office and
why D.O. number and date was mentioned by the then Chief Justice and why
he wanted to have a dispatch number. Still more surprising is that the
office copies of the letter were not kept in file and only after this
Court passed the order, the copies were handed over to the Principal
Secretary. This speaks volumes about the lack of transparency in the
matter. Additionally, the letter of the Chief Justice addressed to the
Government contains many wrong statements. The Law Minister had never
suggested in his letter that a retired Judge was to be appointed.
Therefore, the statement in the letter of the then Chief Justice that he
agreed with the Law Minister that a retired Judge is to be appointed is
totally misconceived. Further, the reasons indicated for taking a
departure from the earlier practice of appointing sitting Judges also
reveals some interesting factors. Only reason which can be inferred from
the letter is that the workload has increased and the paucity in the
number of Judges. The same was the position when the then Chief Justice
suggested the name of a sitting Judge on his own even before the
Government sought for views of the Chief Justice. On February 26, 2005,
the Secretary to Government, Law Department, has noted in the note sheet
that a letter had been received from the Chief Justice recommending the
name of a sitting Judge to be nominated as the Executive Chairman. This
was considered to be "in consultation" with the Chief Justice as
required under Section 6(2) of the Act. The situation was not different
when the then Chief Justice made the recommendation without awaiting a
query from the Government. It obviously means that action of the then
Chief Justice was not principle-oriented but was person-oriented. This
is what is the main grievance of the writ petitioner. Surprisingly, even
in the letter addressed to the Government, the then Chief Justice had
suggested the facilities to be provided to the Judge concerned. This is
not required as a part of the consultation process. Therefore, as
rightly contended by the writ petitioner, there is ample scope for
favouritism in appointment of a retired Judge.
In some cases
earlier a sitting Judge was functioning as the Chairman of the State
Legal Service Authority. We could not find any reason as to why a
departure from the long standing practice of appointing a sitting Judge
as the Chairman of the State Legal Service Authority was departed from.
the affidavit of the State of West Bengal it has been stated as follows:
" .I further submit that the sitting Judges of the High Curt are heavily
burdened with judicial work and hardly it would be possible for them to
afford sufficient time for implementing the legal aid programme for the
entire State. Secondly, if any sitting Judge of the High Court is
appointed Chairman of the State Legal Services Authority, his post as
Judge of High Court shall have to be kept vacant for his return at any
time and the litigant public will suffer for such vacant post of Judge.
On the contrary, if any additional post of Judge in the High Court is
created for such purpose with additional staff that will involve huge
financial liability on State exchequer without fruitful purpose.
Moreover, the sitting Judge may not like to mix with general public who
want to take legal aid. I say that there are 19 Districts including
Kolkatta District in West Bengal."
The stands are not
only confusing but also without any basis.
feature is that some of the State Governments have asked for panel of
names to be given. Calling for such panel in essence results in
substitution of objectivity with subjectivity. This is to be avoided.
Though in terms of Section 6(2) retired Judge can be appointed, but that
shall have to be in exceptional circumstances. The advantage of having a
sitting Judge as the Chairman far outweigh the disadvantages, some of
which have been highlighted by learned counsel for the States where
retired Judges are appointed. Therefore, normal rule is that a sitting
Judge should be appointed as the Chairman and only when unusual
difficulties exist, a retired Judge may be appointed. That has to be the
exception and not the rule.
In some States the
retired Judges have functioned for some time. The concerned State
Governments are directed to re-consider the matter with the consultation
of the Chief Justice of the concerned State and do the needful within a
period of four months.
The writ petition is
allowed with the above-said directions. The original records filed by
the different States be returned by the Registry.
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