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CASE NO.: Writ Petition (civil)  27 of 2007

PETITIONER: Supreme Court Bar Association

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 13/04/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

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.

       Several difficulties 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

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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 Patron-in-Chief;

(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.

Moreover, the 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 away.

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 Authority.

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(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 Services Authority.

       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  Executive Chairman.

       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 following:- (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

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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."

Learned Additional Solicitor General appearing for the Union  of India has stated that the stands taken in the writ petition  merit acceptance.  

 Though the 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 follows:

"That on 13.12.2006 the then Hon’ble

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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\005..-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

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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.

       Interestingly, in the affidavit of the State of West Bengal  it has been stated as follows:

"\005\005.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

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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.  

       Another disturbing 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.