STATE OF PUNJAB & ANR. versus BRIJESHWAR SINGH CHAHAL & ANR.
[2016] 4 S.C.R. 685, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016] 4 S.C.R. 685 
STATE OF PUNJAB & ANR. 
v. 
BRIJESHWAR SINGH CHAHAL & ANR. 
(Civil Appeal No. 3194 of2016) 
MARCH 30, 2016 
[T.S. THAKUR, CJI AND KURIAN JOSEPH, J.] 
Advocates - Law Officers - Appointment of - By the State 
Government - Whether the appointment of Law Officers can be 
questioned or the process, by which such appointments are made, 
can be assailed on the ground of being arbitrary and hence violative 
of Art. 14 of the Constitution - Held: The Government as well as 
the public bodies are trustees of the power vested in them and 
custodians of public interest - Therefore, the nature of their functions 
and duties (including the power to engage, employ or recruit 
servants, agents, advisors and representatives) must be exercised 
in a fair, reasonable, non-discriminatory and objective manner -
Duty to act fairly is a facet of law and Art. 14 of the Constitution is 
intolerant towards arbitrariness - The States in discharge of their 
public duty and power to select and appoint State Counsel, cannot 
disregard either the guarantee contained in Art.14 or the duty to 
protect public interest by picking up the best, nor can the States 
frustrate, delay or negate the judicial process of administration of 
;ustice which heavily banks upon the assistance rendered by the 
Bar - The States (States of Punjab and Haryana) in the present 
case have neither made any realistic assessment of their requirement, 
before making appointment of law Officers, nor haw: formulated
any scheme, policy, ,.urms or standards for appointing such officers 
- There should bP a check on the appointment of State Counsel 
especially in situwions where the appointment is unregulated by 
any constitutional or statutory provision - The States of Punjab 
and Haryana are directed (1) To undertake a realistic assessment 
of their need; (2) Based on the assessment so made, constitute a 
Selection Committee; (3) The Committee on the basis of norms and 
criteria (formulated by the Government or the Committee) conduct 
selection of Law Officers and submit a panel of names to the Chief 
Justice of High Court; (4) The Chief Justice to set up a Committee 
of Judges to review the panel and make recommendations; (5) The 
685 
A 
B 
c 
D 
E 
F 
G 
H
686 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
Chief Justice to record his views regarding the suitability of the 
recommended candidate - Clarified that the present judgment will 
not effect appointment of Advocate General in terms of Art. 165 of 
the Constitution - Constitution of India - Art. 14. 
B 
c 
D 
E 
F 
G 
H 
Disposing of the appeal and the petition, the Court 
HELD: 1.1 For a fair and objective system of appointment, 
there ought to be a fair and realistic assessment of the 
requirement, for otherwise the appointments may be made not 
because they are required but because they come handy for 
political aggrandisement, appeasement or personal benevolence 
of those in power towards those appointed. The dangers of such 
an uncanalised & unregulated system of appointment are multi-
dimensional resulting in erosion of the rule of law, public faith in 
the fairness of the system and injury to public interest and 
administration of justice. [Para 9] [700-C-D] 
1.2 No such assessment has been made nor any material 
disclosed by the State Governments to demonstrate that they 
were sensitive to the need for any such assessment. Power to 
appoint Law Officers was all the same exercised on a totally tu! 
hoc basis without any co-relation between the work load in the 
Courts and the number of Law Officers appointed to handle the 
same. If the power to appoint is exercised not because such 
exercise is called for but because of some extraneous or other 
reason, the
legitimacy of the exercise will itself become 
questionable. [Para 8] [696-G-II; 697-A-B) 
2.1 When the appointments are made to offices heavily 
remunerated from the public exchequer, the same cannot or ought 
not to remain unregulated. That is particularly so when those 
appointed arc expected by the very nature of their appointment 
to discharge important public function affecting not only State 
interest but the quality of justice which the courts administer. 
[Para 15] [704-D-E) 
2.2 In the case of Punjab and Haryana, there is not even a 
semblance of any selection process in the matter of appointment 
of those chosen for the job leave alone a process that is credible 
in terms of its fairness and objectivity. The practice of making 
appointments in disregard of what is expected of a functionary
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
&ANR. 
sensitive to the demands of fairness and equality of opportunity 
even when in vogue for long, runs contrary to the true legal 
position. The dominant purpose which ought to permeate any 
process of selection and appointment namely "protection of 
public interest" in courts by availing services of the most 
meritorious is clearly defeated by the method that the States 
have been following and continue to follow. Even after the 
pronouncements of this Court have settled the principles on 
which public authorities are required to act while discharging 
their functions, the States continue to harp on the theory that 
in the matter of engagement of State counsel they are not 
accountable and that the engagement is only professional and/or 
contractual hence unquestionable. [Para 15) [704-E-ll) 
2.3 Ifa Government counsel discharges an important public 
function and if it is the primary duty of those running the affairs 
of the Government to act fairly, objectively and on a non-
discriminatory basis, there is no option for them except to choose 
the best at the bar out of those who are willing and at times keen 
to work as State counsel. It is also their duty to ensure that the 
process by which the best are selected is transparent and 
credible. Abdicating that important function in favour of the 
Advocate General of the State who, in turn, has neither the 
assistance of norms or procedure to follow nor a mechanism for
assessment of merit will be self-defeating. In the matter of 
appointment of State Counsel, the States of Punjab and Haryana 
have much to do to reform the prevalent system which reform 
is long overdue. [Para 15) (705-A-C] 
3.1 Not only the Government but all public bodies arc 
trustees of the power vested in them and custodians of public 
interest. Discharge of that trust in the best possible manner is 
the primary duty of those in charge of the affairs of the State or 
public body. This.necessarily implies that the nature of functions 
and duties including the power to engage, employ or recruit 
servants, agents, advisors and representatives must be 
exercised in a fair, reasonable, non-discriminatory and objective 
manner. Duty to act fairly and reasonably is a facet of 'Rule of 
Law' in a constitutional democracy like India. Arbitrariness has 
no place in a polity governed by rule of law and Article 14 of the 
687 
A 
B 
c 
D 
E 
F 
G 
H
688 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
Constitution oflndia strikes at arbitrariness in every State action. 
B 
c 
D 
E 
F 
G 
H 
11,'ara 16] 1705-D-F] 
Maneka Gandhi v. 
Union of India (1978) 2 SCR 
621 - followed. 
S G Jaisinghani v. Union of India AIR 1967 SC 1427 : 
1967 SCR 703; E P Royappa v. State of Tamil Nadu 
and Anr. 1974 (2) SCR 348 : (1974) 4 SCC 3; Ramana 
Shetty v. International Airport Authority 1979 AIR 
(SC) 1628 : 1979 (3) SCR 1014; D.S. Nakra v. Union 
of India 1983 (2) SCR 165 : 1983 (1) SCC 305; 
Dwarkadas Marfatia v. Board of Trustees of the port 
of Bombay 1989 (2) SCR 751 :1989 (3) SCC 293; Som 
Raj & Ors. 
v. State of Haryana & Ors. 1990 (1) 
SCR 535 : (1990) 2 SCC 653; Neelima Misra v. 
Harinder Kaur Paintal & Ors. 1990 (2) SCR 84 : 
(1990) 2 SCC 746; Sharma Transport v. Governmem 
of A.P & Ors. 2001 (5 ) Suppl. SCR 390 : (2002) 2 
sec 188 - relied on. 
United States v. Wunderlick 1951 342 US 98:96 Law 
Ed 113 - referred to. 
3.2 Recognition of power exercisable by the functionaries 
of the State as a trust which will stand discharged only if the 
power is exercised in public interest is an important milestone 
just as recognition of the Court's power of judicial review to be 
wide enough to strike at and annul any State action that is 
arbitrary, unguided, whimsical, unfair or discriminatory. [Para 36) 
[714-B-C) 
3.3 A fair, reasonable or non-discriminatory process of 
appointment of State Counsel is not thus demanded only by the 
rule
of law and its intolerance towards arbitrariness but also 
. by reason of the compelling need for doing complete justice. 
which the Courts are obliged to do in each and every cause. The 
States cannot in the discharge of their public duty and power to 
select and appoint State counsel disregard either the guarantee 
contained in Article 14 against non-arbitrariness or the duty to 
protect public interest by picking up the best among those 
available and willing to work nor can the States by their action 
frustrate, delay or negate the judicial process of administration
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL 
&ANR. 
of justice which so heavily banks upon the assistance rendered 
by the members of the Bar. [Para 37) [715-C-E) 
3.4 Appointment of Government cn:msel at the district level 
and equally so at the High Court level, is not just a professional 
engagement, but such appointments have a "public element" 
attached to them. Appointment of Government Counsel must 
like the discharge of any other function by the Government 
and public bodies, be only in public interest unaffected by any 
political or other extraneous considerations. The Government 
and public bodies are under an obligation to engage the most 
competent of the lawyers to represent them in the Courts for it 
is only when those appointed are professionally competent that 
public interest can be protected in the Courts. The Government 
and public bodies are free to choose the method for selecting 
the best lawyers bnt any such selection and appointment process 
must demonstrate that a search for the meritorious was 
undertaken and that the process was unaffected by any 
extraneous considerations. Appointments made in an arbitrary 
fashion, without any transparent method of selection or for 
political considerations will be amenable to judicial review and 
liable to be quashed. Judicial review of any such appointments 
will, however, be limited to examining whether the process is 
affected by any illegality, irregularity or perversity/irrationality. 
The Court
exercising the power of judicial review will not sit in 
appeal to reassess the merit of the candidates, so long as the 
method of appointment adopted by the competent authority does 
not suffer from any infirmity. [Para 38) [716-B-E, G-H; 717-A] 
Shrilekha Vidyarthi v. State of U.P. 1990 (1) Suppl. 
'-';CR 625 : 1991 (1) SCC 212; State of U.P. and 
Jrs. etc. 
v. 
U.P. State Law Officers Association and 
Ors. etc. 1994 (1) SCR 348 : (1994) 2 SCC 204; State 
of U.P. and Am: v Johri Mal 2004 (1) Suppl. SCR 560 
: (2004) 4 sec 714 - relied on. 
Ramuna Dayaram Shetty v. International Airport 
Authority of India 1979 (3) SCR 1014 : (1979) 3 SCC 
489; Kasturi Lal Lakshmi Reddy v. State of Jammu and 
Kashmir 1980 (3) SCR 1338 : (1980) 4 SCC 1; 
Dwarkadas Mmfatia and Sons v. Board of Trustees of 
689 
A 
B 
c 
D 
E 
F 
G 
H
690 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
the Port of Bombay 1989 (2) SCR 751 : (1989) 3 SCC 
293; Mahabir Auto Stores and Others v. Indian Oil 
Corporation and others 1990 (1) SCR 818 : (1990) 3 
sec 752 - referred to. 
B 
c 
D 
E 
F 
G 
H 
Law Commission 197'h Report - referred to. 
4.1 Taking a cue from the provisions of Section 24 Cr.P.C., 
it is held that what serves as a check on the power of the 
Government to appoint a Public Prosecutor, can as well be a check 
on the appointment of the State Counsel also. That is because, 
while the Public Prosecutor's power under the Code of Criminal 
Procedure Code gives him a distinctive position, the office of a 
State Counsel, in matters other than criminal, are no less 
important. A State Counsel by whatever designation called, 
appears in important civil and constitutional matters, service 
and tax matters and every other matter where substantial stakes 
are involved or matters of grave and substantial importance at 
times touching public policy and security of State are involved. 
To treat such matters to be inconsequential or insignificant is to 
trivialise the role and position of a State Counsel at times 
described as additional and even Senior Additional Advocate 
General. What holds good for appointment of a Public Prosecutor 
as a check on arbitrary exercise of power must, therefore, act as 
a check on the State's power to appoint a State Counsel as well 
especially in situations where the appointment is
unregulated by 
any constitutional. or statutory provision. [Para 441 [ 7 1 9- E - II; 
720-A) 
4.2 Such a requirement is implicit in the appointing power 
of the State which power is in trust with the Government or the 
public body to be exercised only to promote public interest. The 
power cannot be exercised arbitrarily, whimsically or in an un-
canalised manner for any such exercise will fall foul of Article 14 
of the Constitution of India and resultantly Rule of law to which 
the country is committed. [Para 44) [720-A-B) 
4.3 No lawyer has a right to be appointed as State 
Government counsel or as public prosecutor at any level nor does 
he have a vested right to claim extension in the term for which 
he/she is initially appointed. They can at best claim consideration 
for any such appointment or extension upon expiry of their 
respective terms. Such consideration shall, however, have to be
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
691 
&ANR. 
in accordance with the norms settled for such appointments and 
on the basis of their inter se merit, suitability and performance if 
they have already worked as State counsel. (Para 45) [720-B-C, 
D-E) 
4.4 With regard to the mechanism for such consideration, 
there are two major aspects that need to be kept in mind. The 
first is the need for assessment and requirement of the State 
Governments having regard to the workload in different courts. 
The second aspect is about the process of selection and 
assessment of merit of the candidates by a credible process. 
The process of selection can be primarily left to the State 
Government who can appoint a Committee of officers to carry 
out the same. The process and selection of appointment 
would be fair and reasonable, transparent and credible if the 
Government or the Committee as the case may be also stipulates 
the norms for assessment of merit and suitability. [Paras 45 
and 46) [720-E-F, H; 721-A, B-C] 
4.5 The third stage of the process of selection and 
appointment shall in the absence of any statutory provisions 
regulating such appointments involve consultation with the 
District & Sessions Judge if the appointment is at the district 
level and the High Court if the appointment is for cases conducted 
before the High Court. The Chief Justice could constitute a 
Committee of Judges to review the names recommended for 
appointment and offer his views in
regard to professional 
competence and suitability of candidates for such appointments. 
Appointments made after such a consultative process would 
inspire confidence and prevent any arbitrariness. The same 
procedure could be followed where candidates are granted 
extension in their terms of appointment in which case the 
Committee appointed by the Government and that constituted 
by the Chief Justice could also look into the performance of the 
candidates during the period they have worked as State counsel. 
[Para 47) [721-D-FJ 
5.1 The Court directed the States of Punjab and Haryana to 
undertake a realistic assessment of their need in each category 
in which State counsel are proposed to be appointed. Based 
on the assessment so made, the States shall constitute a Selection 
A 
B 
c 
D 
E 
F 
G 
H
692 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
Committee with such number of officers as the State Government 
may determine to selel-: suitable candidates for appointment as 
State counsel. The Secretary, Department of Law in each State 
shall be the Member-Secretary of the Selection Committee. The 
Committee shall on the basis of norms and criteria which the 
B 
c 
D 
E 
F 
G 
H 
Government concerned may formulate and in the absence of any 
such norms, on the basis of norms and criteria which the 
Committee may themselves formulate conduct selection of law 
officers for the State and submit a panel of names to the Chief 
Justice of Punjab and Haryana who may set up a Committee of 
Judges to review the panel and make recommendations to the 
Chief Justice. The Chief Justice may based on any such 
recommendations record his views regarding suitability of the 
candidates included in the panel. The Government shall then be 
fr.,., to appoint the candidates having regard to the views 
expressed by the Chief Justice regarding their merit and 
suitability. The procedure for assessment of merit of the 
candidates and consideration by the High Court will apply in all 
cases where the candidates are already working as State counsel 
but are being given an extension in the term of their appointment. 
[Para 48) [721-G-H, 722-A-D) 
5.2 The writ-petitioners shall also be free to offer 
themselves for consideration before the Committee appointed 
by the State Government in which event
their claims may also 
be considered having regard to their merits, suitability and 
performance as State counsel for the period they have worked 
as State counsel. [Para 48) [722-F) 
6. It is clarified that nothing said in this judgment shall 
affect the right of the State Governments to appoint any person 
eligible for such appointment as the Advocate General of the 
State in terms of Article 165 of the Constitution of India. It is 
further clarified that although the Court is primarily concerned 
with the procedure regarding selection and appointment of law 
officers in the States of Punjab and Haryana and although the 
directions are confined to the said two States only, yet other States 
would do well to reform their system of selection and appointment 
to make the same more transparent, fair and objective if 
necessary by amending the relevant LR Manuals/Rules and 
Regulations on the subject. [Para 48) [722-G-H; 723-A-B)
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL 
693 
&ANR. 
Case Law Reference 
A 
1967 SCR 703 
relied on 
Para 17 
1951 342 US 98:96 Law Ed 113 referred to 
Para 17 
1974 (2) SCR 348 
relied on 
Para 18 
(1978) 2 SCR 621 
followed 
Para 19 
8 
1979 (3) SCR 1014 
relied on 
Para 20 
1983 (2) SCR 165 
relied on 
Para 21 
1989 (2) SCR 751 
relied on 
Para22 
1990 (l) SCR 535 
relied on 
Para 23 
c 
1990 ( 2 ) SCR 84 
relied on 
Para23 
2001 (5 ) Suppl. SCR 390 
re!ied on 
Para 23 
1990 (1) Suppl. SCR 625 
relied on 
Para 25 
D 
1979 (3) SCR1014 
referred to 
Para28 
1980 (3) SCR 1338 
referred to 
Para 28 
1989 (2) SCR 751 
referred to 
Para 28 
1990 (1) SCR 818 
referred to Para28 
E 
1994 (1) SCR 348 
relied on 
Para 30 
2004 (1) Suppl. SCR 560 
relied on 
Para34 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3194 of 
2016. 
From the Judgment and Order dated 25.09.2013 of the High Court 
F 
of Punjab and Haryana at Chandigarh in Letters Patent Appeal No. 
1458 of2013 (O&M) 
WITH 
T. P. (C) No. 1073 of2015. 
G 
Nikhil Nayyar, Saurabh Ajay Gupta, AAGs, P. P. Rao, Sr. Adv., 
Kuldip Singh, J. S. Chhabra, Pardeep Kumar Rapria, Abhishek Sharma, 
Advs. for the Appellants. 
Anil Grover, AAG, Satish Kapoor, Dr. Monika Gusain, Advs. for 
the _Respondents. 
H
694 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
The Judgment of the Court was delivered by 
T.S. THAKUR, CJI. I. Leave granted. 
B 
c 
D 
E 
F 
G 
1-1 
2. Th is appeal and the accompanying transferred petition raise a 
question of considerable public importance. The question precisely is 
whether appointment of law officers by the State Governments can be 
questioned or the process by which such appointments are made, can be 
assailed on the ground that the same are arbitrary, hence, violative of the 
provisions of Article 14 of the Constitution oflndia. Before we advert to 
the juristic dimensions of that question, we may briefly set out the factual 
backdrop in which the same falls for our consideration. 
3. Petitioner No. I to the writ petition was initially appointed as an 
Assistant Advocate General in terms of an order dated 23rd April, 2002. 
The appointment was on contractual basis valid upto 31st March, 2003, 
but the same was continued by an order dated 19th July 2003 upto 31st 
March, 2004. He was four years later appointed as Deputy Advocate 
General in the pay scale of Rs.18,400-22,400/- by an order dated 11th 
January, 2008. 1-1 is tenure was later extended upto the year 2011-2012 in 
terms of a memo dated 19th April, 2011. 
4. Petitioner No.2 to the writ petition was similarly appointed as 
an Assistant Advocate General on contract basis and then to the post of 
Deputy Advocate General by orders issued in his favour from time to 
time. In Civil Writ Petition
No.20000 of2011 filed by the respondents 
before the High Court of Punjab and Haryana at Chandigarh they made 
a grievance against their non-absorption on regular basis while Smt. 
Sonu Chahal-respondent No.3 in the writ petition was appointed as Senior 
Deputy Advocate General on contract basis inthe pay scale ofRs.37,400-
67,000/- and a grade pay of Rs. I 0,000/-. The writ petitioner/respondent 
No. I herein questioned the fairness and legality of the approach adopted 
by the appellant herein/State in picking and choosing candidates for regular 
appointment and/or for absorption. It was contended that while 
respondent No. I herein had statted his career as an Assistant Advocate 
General and was re-designated as Deputy Advocate General in the year 
2008 in which capacity he was working for the past nearly eight years, 
petitioner No.2 in the writ petition had just about six years of such 
experience while respondent No.2 herein had no more than four years 
and five months experience before she was absorbed as Senior Deputy 
Advocate General in the office of the Advocate General. The grievance 
of the writ petitioners/respondent No.1 herein was that the State
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
Government had formulated no criterion and followed no norms for 
absorption on a non-discriminatory basis of those working as Law Officers 
of the State. The absorption of petitioner No.2 and respondent No.3 
was dubbed as illegal, arbitrary and discriminatory in the writ petition; 
and a direction to the appellantto frame a policy, laying down guidelines 
for making appointment/absorption/re-designation in the office of the 
Advocate General and to evolve and prescribe suitable criterion for 
regularisation or absorption of those working in that office prayed for. A 
certiorari quashing order dated 23rd September 2011 by which respondent 
No.3 was absorbed on the post of Senior Deputy Advocate General 
was also prayed for, besides a mandamus directing the State to consider 
the case of the writ petitioners for absorption. 
5. A Single Judge of the High Court before whom the writ petition 
came up for hearing, issued notice to the respondent in the writ petition 
and stayed the termination of the services of petitioner No. I in the 
meantime. The State Government appeared in response to the notice to 
contest the writ petition, inter alia, on the ground that the appointment 
of petitioner No. I was contractual in nature terminable at any point of 
time. It was also urged that petitioner No.2 in the writ petition had been 
absorbed considering her good performance. 
6. By an order dated 18th
October, 2012 the writ petition ti led by 
the respondent was admitted to hearing and the interim direction 
restraining the State Government from terminating the services of the 
writ petitioner-rt-spondent No. I continued. With the contractual tenure 
of respondent No. I as Deputy Advocate General coming to an end on 
31st October, 2012 his name does not appear to have figured in the list 
of Deputy Advocates General appointed by an order dated 3 I st October, 
2012. Petitioner No. I/Respondent No. I herein alleged this to be a breach 
of the order passed by the High Court restraining the termination of his 
services and filed contempt petition No.3421 of 2012. The State also 
filed CM No.17076of2012 for clarification of the interim orders dated 
21st October, 2011 and 18th October, 2012, inter alia, contending that 
the contract period of respondent No.1 's appointment having expired, 
he was not entitled to the benefit of the interim orders passed by the 
Court. That application was dismissed by the learned Single Judge in 
terms of an order dated !st December, 2012 as misconceived for in the 
opinion of the Court no clarification of interim order dated 21st October, 
2011 restraining termination was necessary. Aggrieved by order dated 
I st December, 2012 passed by the Single Judge, the State preferred 
695 
A 
B 
c 
D 
E 
F 
G 
H
696 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2016] 4 S.C.R. 
LPANo.1458 of2013 which was dismissed by a Division Bench of the 
High Court by its order dated 25th September, 2013 impugned in the 
present appeal. 
7. In transferred writ petition No.24 7 of 2015 (renu111bered as 
T.P (C) No.1073 of 2015), the petitioner had prayed for quashing of 
certain State Government orders besides a mandamus directing the State 
ofHaryana to engage him as a Law Officer. The petitioner has, however, 
given up his challenge to the orders impugned in the writ petition and 
confined his prayer to a direction for consideration of his case. It was 
submitted that the issues raised in the writ petition were generally the 
same as have been raised in connected SLP (C) No. (CC) No.5470 of 
2014 and the writ petition out of which the said appeal arises. Those 
submissions were recorded and Writ Petition No.24 7 of2015 transferred 
from the High Court of Punjab and Haryana at Chandigarh to this Court 
for final disposal. That is precisely how the appeal and the writ petition 
have been heard together for disposal by this common order. The 
following questions fall for our dete1mination: 
(1) 
Whether the States of Punjab and Haryana have 111ade 
any realistic assessment of their requirement before 
making appointments of Law Officers. 
(2) 
Whether the States of Punjab and Haryana have 
formulated any scheme, policy, nor111s or standards for 
appointing Law Officers. 
(3) 
Whether
appointment of Law Officers by the State 
Governments need to be made on a fair, reasonable, 
non-discriminatory and objective basis; and 
(4) 
If answer to question Nos. 1, 2 and 3 are found in the 
negative, what is the way forward? 
Re: Question No.1 
8. A realistic assessment of the requirement is the first and foremost 
step that one would expect the State to take for any prudent exercise of 
the power of appointment of law officers. No such assessment has 
been made nor any material disclosed by the State Governments to 
demonstrate that they were sensitive to the need for any such assessment. 
Power to appoint Law Officers was all the same exercised on what 
appears to us to be a totally ad hoc basis without any co-relation between
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJ!.] 
the work load in the Courts and the number of Law Officers appointed 
to handle the same. There is no gainsaid that ifthe power to appoint is 
exercised not because such exercise is called for but because of some 
extraneous or other reason the legitimacy of the exercise will itself 
become questionable. That is precisely what has been brought out by 
the Comptroller and Auditor General in his report of Social, General and 
Economic sectors (non PSUs) for the year ended 31-03-2012 for the 
State of Haryana. The report is a telling indictment of the system of 
appointment followed in the State of Haryana which does not provide 
for assessment of the manpower requirement leave alone any worthwhile 
process of selection of those appointed. The result is that more than 
half of those appointed were without any work during the test check 
period resulting in payment of idle salary in crores. The CAG has while 
finding fault with the entire process recommended a realistic assessment 
of the number oflaw officers required on the basis of the workload and 
selection of the appointees in a transparent manner .. The report also 
found the explanation offered by the State Government to be 
unacceptable keeping in view the daily duty roster regarding the Law 
Officer's work and performance. The report of the CAG makes 
interesting reading and may be extracted at this stage : 
"4.2.2 Faulty selection of Law
Officers 
Engagement of Law Officers without assessing worklolUl and 
without inviting appliclllions resultetl in payment of idle wages of 
' 2.22 crore. 
In order to deal with legal cases on behalf of Haryana 
Government in various Courts of Law, Tribunals and 
Commissions, the Additional Chief Secretary to Haryana 
Government, Administration of Justice Department engages 
Law Officers in various capacities on contract basis as per 
terms and conditions prescribed by the State Government. 
With a view to verijj; the work assigned to these law officers 
and work actually performed by them, the complete records 
relating to daily duty rosters, vetting registers and cause lists 
of Courts for six months between December 2009 and January 
20/ 2 maintained in the office of the Advocate General, 
Haryana selected randomly was test checked (May 2012) and 
following irregularities were noticed: 
697 
A 
B 
c 
D 
E 
F 
G 
H
698 
A 
B 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
> There was no prescribed procedure for assessment of work 
for engagement of Law Officers on contract. The number of 
Law Officers on roll to plead legal cases in various courts at 
Chandigarh increased from 98 in December 2009 to 179 in 
January 2012 although the number of courts where they were 
to defend the cases remained the same during the above 
period. 
> The Law Officers were engaged without giving any 
advertisement or wide publicity. 
> Jn the test-checked months, on an average, more than 50 per 
c 
cent Law Officers remained without work. As detailed in Table 
2, on an average the percentage of idle Law Officers with 
total available strength had arisen from 54 in December 2009 
to 78 in January 2012. There was no monitoring of work 
assigned to these Law Officers by the Department. 
D 
Table 2: Detail of Law Officers (LOs) without work and 
payment of idle salary 
Nurrher 
Working 
~ 
Percentc,ge NunVer 
kiesa/(l}y 
if Loson ~ 
morherif ifLOrnlv iflos 
paidtolOi 
rolls 
available Los »itlvit renvimi 
»rx-kfcr 
uitlvit 
intk 
Clf!JI »Ol7< 
»illvit 17!)' mrplete »DI* fer 
E 
nmh 
(XI 
»DI* 
nvnth 
wvlesale 
(exchdng 
fXY(icular 
nmh (in ) 
Courl 
«~i.siftk 
lvlkb;i.s 
nvnth 
ad 
va:atiOlri) 
F 
Dx:eniJer 
2(ff) 
98 
JI 
54 
55 
20 
10,33,872 
Augt6t 
137 
21 
70 
51 
27 
19,40,983 
2010 
Nuveniier 
151 
18 
l(X) 
()6 
42 
30,88,534 
2010 
G 
M1rch 
153 
22 
97 
63 
58 
42,21,554 
2011 
Nuveniier 
169 
21 
123 
73
63 
49,51,S&J 
2011 
Januay 
1'79 
20 
140 
78 
87 
69,~786 
2012 
H 
T<Xal /<le sa/(UV naiL/ to law Officers nitllOltl assiJ.mi11f! mzv HVrk
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJ!.] 
> In the test-checked months, the number of Law Officers ranging 
between 20 and 87 had not been allotted any work for whole 
of the month resulting in idle salary payment of 2.22 crore 
to these Law Officers for six months as detailed above. 
In January 2012, out of 179 Law Officers on the roll on an 
average, 140 Law Officers had not been allotted any work 
and 87 Law Officers were without work for whole of the month. 
However, later on the Department discontinued the services 
of 26 Law Officers in June 2012. This shows that Law Officers 
were engaged without assessing the requirement on the basis 
of work or work norms or workload prevailing in the 
Department. No such exercise was found to be done while 
·engaging such Law Officers. 
The matter was discussed in detail with the Additional Chief 
Secretary to Government of Haryana, Administration of Justice 
Department in an exit conference held on 23 October 2012. 
During the meeting it was stated that some guidelines should 
be in place to assess the vacancies on the basis of workload 
and selection of Law Officers should be made in a transparent 
manner. The Department was doubtful about the high 
percentage of Law officers without assigning any work and 
stated (November 2012) that though the work was generally 
assigned to a team comprising more than one Law Officer but 
in the daily duty roster name of only one Law Officer was 
mentioned.
It was further added that these Law Officers 
perform multifarious duties/functions such as research of law 
for particular pending cases, for general updating of latest 
case law, preparing factual and legal notes, preparing 
compendium or judgments, etc. However, no requirement or 
need was felt to keep record of such assignments as the 
concerned Law Officers were responsible to deal with the 
cases entrusted to them. 
The contention of the Department that the names of all team 
members were not mentioned in daily duty roster was not 
acceptable as during re-verification of daily duty rosters, after 
the exit conference, it was found that wherever a team was 
deputed for a specific work, names of all the team members 
were mentioned therein. 
699 
A 
B 
c 
D 
E 
F 
G 
H
700 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2016) 4 S.C.R. 
Thus, the engagement of excess Lmv Officers without assessing 
the quantum of work and without resorting to fair and 
transparent selection method, resulted in allowing more than 
50 per cent Law Officers without work and payment of idle 
salary of 2.22 crore." 
9. We are not sure whether a similar study has been conducted 
qua the State of Punjab, but given the fact that the number of law officers 
appointed by that State is also fairly large, we will not be surprised if any 
such study would lead to similar or even more startling results. The 
upshot of the above discussion is that for a fair and objective system of 
appointment, there ought to be a fair and realistic assessment of the 
requirement, for otherwise the appointments may be made not because 
they are required but because they come handy for political 
aggrandisement, appeasement or personal benevolence of those in power 
towards those appointed. The dangers of such an uncanalised & 
unregulated system ofappointment, it is evident are multi-dimensional 
resulting in erosion of the rule of law, public faith in the fairness of the 
system and injury to public interest and administration of justice. It is 
high time to call a halt to this process lest even the right thinking become 
cynical about our capacity to correct what needs to be corrected. 
10. Question No.1 is accordingly answered in the negative. 
Re: Question No.2 
11. The question whether
the States of Punjab and Haryana follow 
any procedure for selecting practising advocates for appointment as law 
officers have troubled us throughout the hearing. We had, therefore, 
solicited information from the State of Punjab on certain specific questions 
that we formulated in terms of our order dated 1 lth April, 2014 and 
asked the State to file an affidavit indicating the following:-
]) What is the procedure followed by the State Government for 
selecting practising Advocates for appointment as Law 
Officers for the State of Punjab? 
2) ls there any selection or Search Committee constituted for the 
G 
purpose of making such selections? If so, what is the 
composition of the Committee? 
3) If a Selection/Search Committee has been constituted, the 
. proceedings of the Committee regarding any appointment of 
Law Officers from time to time be filed along with the affidavit. 
H 
4) Does the Government consult the High Court before finalizing
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJ!.] 
the list of appointments? If the High Court is not consulted, 
what is other method by which the Government ensures that 
those picked up are the best at the Bar? 
5) Total number of Law Officers appointed and currently working 
and the terms on which the appointments are made shall also 
be filed along with the affidavit. 
12. We had, by a subsequent order dated 2nd September, 2015 
passed in Transferred Petition No. I 073 of 2015, asked the State of 
Haryana also to file an affidavit answering the above queries. Both the 
States have in compliance with the said orders filed their respective 
affidavits. In the affidavit filed on behalf of the State of Punjab it is, 
inter alia, stated that there is no definite procedure statutory or otherwise 
governing the selection and appointment of advocates practising as law 
officers in the State of Punjab. Conventionally, these officers are engaged 
on contractual basis on the recommendations of the Advocate General 
or in consultation with him. At times, even the Government engages law 
officers after making "discreet enquiries" about their suitability for such 
engagements. A sizeable number of law officers so engaged are 
designated as Public Prosecutors in consultation with the High Court of 
Punjab and Haryana. The affidavit sets out in paragraph 4 answers to 
the questions on which the State was required to respond. For the sake 
of convenience we
may extract verbatim the questions and the replies 
to the same: 
"l) What is tile procedure followed by the State Govemment for 
selecting practicing Advocates for appointment as Law 
Officers for the State of Punjab. 
As stated hereinabove, the engagement of law officers to defend 
the State Government in cases assigned to them cannot be regulated 
by Statute or policy. Law officers are engaged on the 
recommendation of the Advocate General of the State, based, 
interalia, on the assessment of individuals by the Advocate General 
as well as on recommendations made by colleagues, peers and 
others. In some cases, the State Government engages law officers 
after making discreet inquiries as to the suitability of the individual 
as a law officer. 
2) ls there any selection or searclz Committee constituted for 
the purpose of making suclt selections. If so, what is the 
composition of tlze Committee. 
701 
A 
B 
c 
D 
E 
F 
G 
H
702 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
Th~re is no selection or search committee constituted for making 
such selections. 
3) If a Selection/Search Committee has been com·tituted, the 
proceedings of the Committee regarding any appointment of 
Law Officers from time to time be filed along with the affidavit. 
B 
Not applicable, in view of response to item 2 above. 
4) Does the Government consult the High Court before finalizing 
the list of appointments. If the High Court is not consulted, 
what is other method by which the Government en.~ures that 
those picked up are the best at the Bar. 
c 
It is submitted that the Government does not consult the Hon'ble 
High Court before finalizing the list of appointments, except in the 
case of public prosecutors appointed under Section 24 of Code of 
Criminal Procedure, 1973. It is submitted that this practice has 
continued over the years by convention and is also followed by 
D 
E 
F 
G 
11 
other State Governments. It is further submitted that "best at the 
bar" is a subjective concept. In any event, as is commonly known, 
most "successful" lawyers are unwilling to take-up the 
responsibilities of holding such a position and make sacrifices since 
it impinges of their private practice. 
5) Total number of Law Officers appointed and currently working 
and the terms on which the appointments are made shall also 
be .filed alon1: with the affidavit. 
(i) In reply to above, Point No. S, the details of total numbers of Law
Officers currently working is given below: 
Sr. 
Designation 
No. of Law Officers 
No. 
I. 
Additional Advocate General, 
74 
Punjab 
2. 
Senior Deputy Advocate 
05 
General, Punjab 
3. 
Deputy Advocate General, 
40 
Punjab 
4. 
Assistant Advocate General, 
55 
Punjab 
5. 
Advocate-on-Record 
02
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJ!.] 
The terms and conditions of engagement of the above Law 
Officers, who have been engaged on contract basis on year to 
year basis, are yet to be finalized by the Government as is clear 
from their sample engagement letters and copies of sample 
engagement letters issued in respect of each category of posts 
are attached herewith as Annexure P-16 to P-19 (Page Nos. 136 
to 142). 
(ii) It is stated that in four cases an exception was made and persons 
were absorbed as Sr. DAG/DAG. With regard to these four cases 
703 
A' 
B 
it is submitted that it would be wholly illogical to suggest that other 
advocates engaged by the State as law officers, (who are required . C 
to work under the Advocate General and to be guided in the 
discharge of their professional duties as per the instructions and 
guidance of the Advocate General) should be treated as "regular" 
employees of the Government merely because they are paid a 
fixed fee or on a monthly basis calculated with reference to a pay 
scale." 
D 
13. The State ofHaryana has also filed an affidavit in compliance 
with the directions issued by us. In answer to question no. I the State of 
Haryana has stated that the appointments are made on contractual basis 
on the recommendations of the learned Advocate General and that it is 
the Advocate General who assesses their suitability for such appointments. 
Neither a Selection nor Search Committee is
constituted for the purpose 
nor is the High Court consulted before the names are finalised. 
14. From the two affidavits filed by the States it is manifest that 
no procedure for selecting practising advocates for appointment as law 
officers has been prescribed in the States of Punjab and Haryana. No 
Selection or Search Committee is constituted or is even envisaged. It is 
also clear that the two Governments do not consult the High Court before 
finalizing the list of appointees. The affidavits do not at the same time 
indicate as to how in the absence of any Selection or Search Committee 
the State Government ensures a fair selection in which they pick-up the 
best available and willing to accept the assignment as State counsel. 
The affidavits place the burden of making the process of fair selection 
upon the wisdom of the Advocates General of the two States. The 
affidavits do not state whether the Advocate General, has, in turn, 
constituted a Committee or followed any procedure or prescribed or 
formulated any norms for assessing the merit of those willing to work as 
E 
F 
G 
H
704 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
(2016) 4 S.C.R. 
State counsel. The affidavits do not even say if any applications are 
invited for appointment as State counsel. All told, the appointments are 
based entirely on how the Advocate General advises the State 
Government on the subject without the Advocate General in turn 
conducting a selection process, assessing inter se merit on an objective 
basis or maintaining any record of any such process having been 
undertaken. The affidavits also do not rule out the possibility of the 
Governments themselves appointing persons over and above those 
recommended by the Advocate General on the basis of what the Affidavit 
of the State of Punjab describes as "discreet enquiries". The affidavits 
suggest that the process has been going on for past many years. The 
States also claim that the engagement of State counsel is a professional 
engagement meaning thereby that the States have no obligation either to 
prescribe a procedure or follow any definite method while making such 
appointments. State of Punjab has asserted that the process of selection 
and appointment cannot be regulated either by policy or by any statute. 
15. We have not been able to persuade ourselves to accept the 
view that even when the appointments are made to offices heavily 
remunerated from the public exchequer the same can or ought to remain 
unregulated. That is particularly so when those appointed are expected 
by the very nature of their
appointment to discharge important public 
function affecting not only State interest but the quality of justice which 
the courts administer. There is in the case of Punjab and Haryana not 
even a semblance of any selection process in the matter of appointment 
of those chosen for the job leave alone a process that is credible in terms 
of its fairness and objectivity. The practice of making appointments in 
disregard of what is expected of a functionary sensitive to the demands 
of fairness and equality of opportunity even when in vogue for long, runs 
contrary to the true legal position settled by a long line of decisions to 
which we shall presently refer. The dominant purpose which ought to 
permeate any process of selection and appointment namely "protection 
of public interest" in courts by availing services of the most meritorious 
is clearly defeated by the method that the States have been following 
and continue to follow. What is regrettable is that even after the 
pronouncements of this Court have settled the principles on which public 
authorities are required to act while discharging their functions, the States 
continue to harp on the theory that in the matter of engagement of State 
counsel they are not accountable and that the engagement is only 
professional and/or contractual hence unquestionable. It is, in our view,
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
705 
& ANR. [T.S. THAKUR, CJI.] 
too late in the day for any public functionary or Government to advance 
such a contention leave alone expect this Court to accept the same. If a 
Government counsel discharges an important public function and if it is 
the primary duty of those running the affairs of the Government to act 
fairly, objectively and on a non-discriminatory basis, there is no option 
for them except to choose the best at the bar out of those who are 
willing and at times keen to work as State counsel. It is also their duty to 
ensure that the process by which the best are selected is transparent 
and credible. Abdicating that important function in favouroftheAdvocate 
General of the State who, in tum, has neither the assistance of norms or 
procedure to follow nor a mechanism for assessment of merit will be 
self-defeating. We regret to say that in the matter of appointment of 
State Counsel, the States of Punjab and Haryana have much to do to 
reform the prevalent system which reform is in our opinion long overdue. 
Question No.2 is also answered in the negative. 
Re: Question No.3 
16. It is by now, fairly well settled that not only the Government 
but all public bodies are trustees of the power vested in them and 
custodians of public interest. Discharge of that trust in the best possible 
manner is the primary duty of those in charge of the affairs of the State 
or public body. This necessarily implies that
the nature of functions and 
duties including the power to engage, employ or recruit servants, agents, 
advisors and representatives must be exercised in a fair, reasonable, 
non-discriminatory and objective manner. It is also fairly well settled 
that duty to act fairly and reasonably is a facet of 'Rule of Law' in a 
constitutional democracy like ours. A long line of decisions of this Court 
over the past five decades or so have ruled that arbitrariness has no 
place in a polity governed by rule of law and that Article 14 of the 
Constitution of India strikes at arbitrariness in every State action. We 
may gainfully refer to some of these decisions, not so much to add to 
their content as to remind ourselves that we have come a long way in 
the matter of settling the contours of the doctrine of Rule of Law of 
which equality is one significant feature. 
17. In S G Jaisinglzani v. Union of India AIR 1967 SC 1427, 
this Court held that absence of arbitrary power is the first essential of 
"Rule of Law" upon which rests our Constitutional system. This Court 
ruled that in a system governed by rule oflaw, any discretion conferred 
upon the executive authorities must be confined within clearly defined 
A 
B 
c 
D 
E 
F 
G 
H
706 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
limits. This Court quoted with approval, the following observations of 
Douglas J. in United States vs. Wunderlick 1951 342 US 98:96 Law Ed 
113: 
"Law has reached its finest moments when it has freed man 
from the unlimited discretion of some ruler ... Where discretion 
is absolute, man has always siiffered. " 
I 8. A similar sentiment was expressed by this Court in E P Royappa 
v. State of Tamil Nadu and Anr. (1974) 4 SCC 3 where this Court 
declared that Article 14 is the genus while Article 16 is a specie and the 
basic principle which infonns both these Articles is equality and inhibition 
against discrimination. Equality, declared this Court, was antithetic to 
arbitrariness. The Court described equality and arbitrariness as sworn 
enemies, one belonging to the rule of law in a republic and the other to 
the whims and caprice of an absolute monarch. Resultantly if an act is 
found to be arbitrary, it is implicit that it is unequal both according to 
political logic and constitutional law, hence violative of Article 14 and ifit 
affects any matter of public employment it is also violative of Article 16. 
This Court reiterated that Articles 14 and 16 strike at arbitrariness in 
State action and ensure fairness and inequality of treatment. 
19. Then came the decision of this Court in Maneka Gandhi v. 
Union of India (1978) 2 SCR 621, where this Court held that the 
principle ofreasonableness both legally
and philosophically is an essential 
element of equality and that non-arbitrariness pervades Article 14 with 
brooding omnipresence. This implies that wherever there is ~rbitrariness 
in State action whether, it be legislative or executive Article 14 would 
spring into action and strike the same down. This Court held, that the 
concept of reasonableness and non-arbitrariness pervades the 
constitutional scheme and is a golden thread, which runs through the 
entire Constitution. 
20. In Ranuma Sltetty v. Intemational Airport Authority 1979 
AIR (SC) 1628, this Court relying upon the pronouncements of E.P. 
Royappa and Maneka Gandhi (supra) once again declared that state 
action must not be guided by extraneous or irrelevant considerations 
because that would be denial of equality. This Court recognized that 
principles of reasonableness and rationality are legally as well as 
philosophically essential elements of equality and non-arbitrariness as 
projected by Article 14, whether it be authority of law or exercise of 
executive power without the making of a law. This Court held that State
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
cannot act arbitrarily in the matter of entering into relationships be it 
contractual or otherwise with a third party and its action must conform 
to some standard or norm, which is in itself rational and non-
discriminatory. 
21. In D.S. Nakra v. Union of India 1983 (1) SCC 305, this 
Court reviewed the earlier pronouncements and while affirming and 
explaining the same held that it must now be taken to be settled that 
what Article 14 strikes at is arbitrariness and that any action that is 
arbitrary must necessarily involve negation of equality. 
22. In Dwarkadas Marfatia v. Board of Trustees of the port of 
Bombay 1989 (3) SCC 293, this Court had an occasion to examine 
whether Article 14 had any application to contractual matters. This court 
declared that every action of the state or an instrumentality of the State 
must be informed by reason and actions that are not so informed can be 
questioned under Articles 226 and 32 of the Constitution. 
23. Subsequent decisions of this Court in Som Raj & Ors. v. 
State of Haryana & Ors. (1990) 2 SCC 653, Neelima Misra v. 
Harinder Kaur Paintal & Ors. (1990) 2 SCC 746 a11d Sharma 
Transport v. Govemme11t of A.P & Ors. (2002) 2 SCC 188 have 
simply followed, reiterated and applied the principles settled by the 
pronouncements in the earlier mentioned cases. 
24. We have thus far referred to decisions that are not subject 
specific and settle the legal
position in the context of varied fact situations. 
The case at hand attracts the application of the principles that are 
authoritatively settled by the decisions to which we have referred above. 
Application of those principles, apart from the question, is whether 
appointment of lawyers by the State Government simply signifies 
professional engagement of those appointed or has any public element 
also and if such appointments have a public element, whether the making 
of the same can itself be the subject matter of judicial review. The extent 
and nature of such review is an incidental question that would fall for 
determination in the facts of the case before us. We shall presently 
advert to those questions but before we do so we must state that we are 
not on virgin ground. A few decisions to which we shall presently refer 
have examined at considerable length, the very same questions and 
answered them with considerable aplomb. We may gainfully refer to 
some of those pronouncements if not all. 
707 
A 
B 
c 
D 
E 
F 
G 
H
708 
A 
B 
c 
D 
E 
F 
• 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
25. In Slirilekfla Vidyartlli v. State of U.P. 1991 (1) SCC 212, 
which happens to be the first of these decisions, this Court had an occasion 
to examine whether Government Counsel in the districts are holders of 
an 'office or post' or such appointments are no more than professional 
engagements like the one between a private client and his lawyer. That 
case arose out of a challenge mounted by Government Counsel who 
were engaged throughout the State of Uttar Pradesh to handle civil, 
revenue or criminal cases and whose services were en masse terminated 
by the State only to be replaced by fresh appointments on the basis of a 
new panel prepared for that purpose and communicated to the District 
Magistrates concerned. On behalf of the State, it was argued that the 
engagement of Government Counsel was nothing but a professional 
engagement between a client and his lawyer with no public element 
attached to it. 
26. Rejecting that contention, this Court held that the appointment 
of the District Government Counsel by the State Government was not 
merely a professional engagement but had a public element attached to 
it. This Court noted that Government Counsel were paid remuneration 
out of the public exchequer and that having regard to Sections 24, 25 
and 321 of the Code of Criminal Procedure, the public prosecutors were 
entrusted the responsibility ofacting only in the interest of administration 
of
justice. In the case of Public Prosecutors, declared this Court, the 
additional public element flowing from the statutory provisions in the 
Code of Criminal Procedure, clothed the public prosecutors with the 
attribute of the holders of a public office which cannot be whittled down 
by the assertion that their engagement is purely professional between a 
client and his lawyer with no public element attached to it. This was 
according to this Court, sufficient to attract Article 14 and bring the 
question of validity of the impugned circular within the scope of judicial 
review. 
27. The decision in Shrileklw's case (supra) is noteworthy for 
the additional reason that the same held judicial review of State action 
G 
pennissible even when the engagement of the Government counsel may 
be contractual in nature. This Court observed : 
"The State cannot be attributed the split personality of Dr. 
Jekyll and Mr. Hyde in the contractual field so as to impress 
on it all the characteristics of the State at the threshold while 
H 
making a contract requiring it to fulfil the obligation of Article
STATE OF PUNJAB & ANR. v. BRJJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
14 of the Constitution and thereafter permitting it to cast off 
its garb of State to adorn the new robe of a private body 
during the subsistence <f the contract enabling it to act 
arbitrarily subject only tJ the contractual obligations and 
remedies flowing from it. It is rerilly the nature of its personality 
as State which is significant .md must characterize all its 
actions, in whatever field, and not the nature of function, 
contractual or otherwise, which is decisive of the nature of 
scrutiny per111itted for examining the validity of its act. The 
requirement of Article 14 being the duty to act fairly, justly 
and reasonably, there is 11othi11g which militates against the 
concept of requiring the State always to so act, even in 
contractual matters. There is a basic difference between the 
acts of the State which must invariably be in public interest 
and those of a private individual, engaged in similar activities, 
being pri111arily for personal gain, which may ()I' may not 
promote public interest. Viewed in this manner, in which we 
find no conceptual difficulty or anachronism, we find no 
reason why the requirement of Article 14 should 1101 extend 
even in the sphere of contractual matters for regulating the 
conduct of the State activity. " 
28. Relying upon the decisions of this Court in Ramana Dayaram 
Shelly v. International Airport Authority of llldia (1979) 3 SCC 489;
Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir (1980) 
4 SCC I; Dwarkadas Marfatia and Sons v. Board of Trust.!es of tile 
Port of Bombay (1989) 3 SCC 293 and Mahabir Auto Storel· mu/ 
Others v. I11dill11 Oil Corporation mu/ others (1990) 3 SCC 752, this 
Court held that the power of judicial review and the sweep of Article 14 
was wide enough to take within its fold the impugned circular issued by 
the State in exercise of its executive powers irre5pective of the precise 
nature of appointment of the Government Counsel in the districts or the 
rights, contractual or statutory, which the appointees may have. This 
Court reiterated the well settled principle that State action can survive 
only if it does not suffer from the vice of arbitrariness which is the very 
essence of Article 14 of the Constitution and Ruk of law. This Court 
observed: 
"It is 11ow too well-settled that every State action, in order to 
survive, must not be susceptible to the vice of arbitrariness 
709 
A 
B 
c 
D 
E 
F 
G 
H
710 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016) 4 S.C.R. 
which is the crux of Article 14 of the Constitution and basic 
to the rule of law, the system which governs us. Arbitrariness 
is the very negation of the rule of law. Satisfaction of this 
basic test in every State action is sine qua non to its validity 
and in this respect, the State cannot claim comparison with a 
private individual even in the field of contract. This distinction 
between the State and a private individual in the field of 
contract has to be borne in the mind. " 
29. Applying the above principle to the circular under challenge, 
this Court held that arbitrariness was writ large on the same as it gave 
an impression as ifthe State action was taken under a mistaken belief of 
applicability of"spoils system" under our constitution. This Court held 
that even though in the case of State, public interest should be the guiding 
consideration while considering the suitability of the appointees yet the 
impugned State action appeared to have been taken with the sole object 
of terminating all existing appointments irrespective of the subsistence 
or expiry of the tenure or the suitability of the incumbents. The following 
passage from the judgment sums up the trend of the judicial 
pronouncements which increasingly favour State activity even in 
contractual matter being brought within the purview of judicial review: 
"In our view, bringing the State activity in contractual matters 
also within
the purview of judicial review is inevitable and is 
a logical corollary to the stage already reached in the 
decisions of this Court so far. Having fortunately reached 
this point, we should not now turn back or take a turn in a 
different direction or merely stop there. 
In our opinion, two recent decisions in Mis Dwarkadas 
Marfatia and Sons, (supra) and Mahabir Auto Stores & 
Ors., (supra) also lead in the same direction without saying 
so in clear terms. This appears to be also the trend of the 
recent English decisions. It is in consonance with our 
commitment to openness which implies scrutiny of every State 
action to provide an effective check against arbitrariness and 
abuse of power. We would much rather be wrong in saying so 
rather than be wrong in not saying so. Non-arbitrariness. 
being a necessary concomitant of the rule of law. it is 
imperative that all actions of every public functionary. in 
whatever sphere. must be guided by reason and not humour. 
whim. caprice or personal predilections of the persons
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
711 
& ANR. [T.S. THAKUR, CJJ.] 
entrusted with the task on behalf of the State and exercise of 
A 
all power must be for public good instead of being an abuse 
of the power. ·· 
(emphasis supplied) 
30. In State of U.P. a/Uf Ors. etc. v. U.P. State Law Officers 
Association and Ors. etc. (1994) 2 SCC 204, also law officers were 
removed by the State Government, aggrieved whereof, the affected 
officers approached the High Court contending, inter alia, that their 
removal was against the principles of natural justice and that they could 
be removed from their offices only for valid reasons. The High Court 
agreed with that contention, al lowed the petition and quashed the orders 
ofremoval. The State assailed that order before this Court in which this 
Court examined the issue from three different dimensions viz., (i) the 
nature of the legal profession; (ii) the interest of public; and (iii) the 
modes of appointment and removal. 
31. While dealing with the nature of the legal profession, this 
Court observed that legal profession was essentially a service-oriented 
profession and.that the relationship between the lawyer and his client is 
one of trust and confidence. As a responsible officer of the court and an 
important adjunct of the administration of justice, the lawyer also owes a 
duty to the court as well as to the opposite side. He has to be fair to 
ensure that justice is done. He demeans himself if he acts merely
as a 
mouthpiece of his client. Having said that, this Court noted the changed 
profile of the legal profession because of the expansion of public sector 
activities necessitating maintenance of a common panel oflawyers, some 
of whom are in full-time employment of the government or public 
institutions as their law officers. 
32. On the question of public interest involved in the appoillfment 
of lawyers, this Court unequivocally declared that the government or 
the public body represents public interest and whoever is in charge of 
running their affairs is no more than a trustee or a custodian of public 
interest. Protection of public interests in the best possible manner is 
their primary duty. It follows that public bodies are under an obligation 
to the society to take the best possible steps to safeguard such interests. 
That obligation in turn casts on them the duty to engage the most 
competent servants, agents, advisers etc. Even in the matter of selection 
of lawyers, those who are running the government or the public bodies 
are under an obligation to make earnest efforts to select the best from 
B 
c 
D 
E 
F 
G 
H
712 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016) 4 S.C.R. 
the available lot. This is more so because the claims made by and/or 
against the public bodies are monetarily substantial and socially crucial 
with far-reaching consequences. 
33. This Court while dealing with the third dimension touching the 
mode of appointment of lawyers declared that in conformity with the 
obligation cast upon them those handling the affairs of the State are duty 
bound to select the most meritorious, whatever the method adopted for 
such selection and appointment may be. It must be shown that a search 
for the meritorious was undertaken and that appointments were made 
only on the basis of the merit and not for any other consideration. The 
following passage is in this regard apposite. 
"18. The mode of appointment of lawyers for the public bodies, 
therefore. has to be in conformity with the obligation cast on 
them to select the most meritorious. An open invitation to the 
lawyers to compete (or the posts is by far the best mode of 
such selection. But so111eti111es the best 111ay not compete or a 
competent candidate may not be available from among the 
competitors. In such circumstances, the public bodies may 
resort to other methods such as inviting and appointing the 
best available, although he 111ay not have applied for the post. 
Whatever the 111ethod adopted. it 111ust be shown that the search 
for the meritorious was undertaken and the appointments were 
111ade only on
the basis of the merit and not (or any other 
consideration. " 
(emphasis supplied) 
34. In State of U.P. and Anr. v Joltri Mal (2004) 4 SCC 714 a 
three-Judge Bench of this Court had an occasion to deal with somewhat 
similar question that arose once again in relation to appointment of 
government lawyers in the State of U.P. This Court reviewed the 
decisions earlier delivered and ruled that public interest would be 
safeguarded only when good and competent counsel are appointed by 
the State. No such appointments should, declared this Court, be made 
for pursuing a political purpose or for giving some undue advantage to 
any particular section. The State should replace an efficient, honest and 
competent lawyer only when it is in a position to appoint a more competent 
lawyer in his place, observed this Court. The following passage is apposite 
in th is regard:
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJJ.] 
44. Only when good and competent counsel are appointed 
by the State, the public interest would be safeguarded. The 
State while appointing the public prosecutors must bear in 
mind that for the purpose of upholding the rule of latt\ good 
administration of justice is imperative which in turn would 
have a direct impact on sustenance of democracy. No 
appointment of Public Prosecutors or District Counsel should, 
thus. be made either (or pursuing a political purpose or for 
giving some undue advantage to a section of people. Retention 
of its counsel bv the State must be weighed on the scale of 
public interest. The State should replace an efflcient. honest 
and competent lawyer. inter alia. when it is in a position to 
appoint a more competent lawyer. In such an event, even a 
good performance by a lawyer may not be of much 
importance. " 
(emphasis supplied) 
35. While dealing with the nature of office the government counsel 
hold, this Court declared that the State Government Counsel holds an 
office of great importance. They are not only officers of the court but 
also the representatives of the State and that_ courts repose a great deal 
of confidence in them. They are supposed to render independent, fearless 
and non-partisan views before the court irrespective of the result of 
litigation which may ensue. So also the public prosecutors have great 
responsibility. They are required to
perform statutory duties independently 
having regard to various provisions contained in the Code of Criminal 
Procedure. The State Government counsel represents the State and 
thereby the interest of the general public before a court of law. This 
requires that government counsel have character, competence, sufficient 
experience as also standing at the Bar. The need for employing meritorious 
and competent persons to maintain the standard of the high office cannot 
be minimized, observed the court, particularly, when the holders of the 
post have a public duty to perform. The Court also expressed anguish 
over the fact that in certain cases the recommendations are made by the 
District Magistrate having regard to the political affinity of the lawyers 
to the party in power and that State is hot expected to rescind the 
appointments with the change in the government because a new party 
__ _J}as taken over charge of the Government. This Court also recognized 
the age-old tradition of appointing the District Government Counsel on 
713 
A 
B 
c 
D 
E 
F 
G 
H
714 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
the basis of the recommendations of the District Collector in consultation 
with the District Judge. The fact thatthe DistrictJ udge, who is consulted 
while making such appointment knows the merit, competence and 
capability of the lawyer concerned, was also recognized by the Court. 
36. The development oflaw in this country has taken strides when 
it comes to interpreting Articles 14 and 16 and their sweep. Recognition 
of power exercisable by the functionaries of the State as a trust which 
will stand discharged only ifthe power is exercised in public interest is 
an important milestone just as recognition of the Court's power of judicial 
review to be wide enough to strike at and annul any State action that is 
arbitrary, unguided, whimsical, unfair or discriminatory. Seen as important 
dimensions of the rule of law by which we swear the law as it stands 
today has banished from our system unguided and uncanalised or arbitrary 
discretion even in matters that were till recently considered to be within 
the legitimate sphere ofa public functionary as a repository-0fExecutive 
Power. Those exercising power for public good are now accountable 
for their action, which must survive scrutiny or be annulled on the first 
principle that the exercise was not for public good in that the same was 
either malafide, unfair, unreasonable or discriminatory. Extension of the 
principle even to contractual matters or
matters like engagement oflaw 
officers is symbolic of the lowering of the threshold of tolerance for 
what is unfair, unreasonable or arbitrary. The expanding horizons of the 
jurisprudence on the subject both in terms of interpretation of Article 14 
of the Constitution as also the court's willingness to entertain pleas for 
judicial review is a heartening development on the judicial landscape 
that will disentitle exercise of power by those vested with it as also 
empower those affected by such power to have it reversed if such 
reversal is otherwise merited. 
37. The question whether a fair, reasonable and non-discriminatory 
method of selection should or should not be adopted can be viewed from 
another angle also equally if not more important than the need for 
preventing any infringement of Article 14. The State counsel appears 
for the State Government or for public bodies who together constitute 
the single largest litigant in our Court system. Statistics show that nearly 
80% of litigation pending in the courts today has State or one of its 
instrumentalities as a party to it. State Counsel/counsel appointed by 
public bodies thus represent the largest single litigant or group engaged 
in litigation. It is also undeniable that for a fair, quick and satisfactory
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
adjudication of a cause, the assistance which the Court gets from the 
Bar is extremely important. It is at times said thatthe quality of judgment 
or justice administered by the courts is directly proportionate to the quality 
of assistance that the courts get from the Counsel appearing in a case. 
Our system of administration of justice is so modelled that the ability of 
the lawyers appearing in the cause to present the cases of their respective 
clients assumes considerable importance. Poor assistance at the Bar by 
counsel who are eithernot sufficiently equipped in scholarship, experience 
or commitment is bound to adversely affect the task of administration of 
justice by the Court. Apart from adversely affecting the public interest 
which State counsel are supposed to protect, poor quality of assistance 
rendered to the cqurts by State Counsel can affect the higher value of 
justice itself. A fair, reasonable or non-discriminatory process of 
appointment of State Counsel is not thus demanded only by the rule of 
Jaw and its intolerance towards arbitrariness but also by reason of the 
compelling need for doing complete justice which the Courts are obliged 
to do in each and every cause. The States cannot in the discharge of 
their public duty and power to select and appoint State counsel disregard 
either the guarantee contained in Article 14 against non-arbitrariness or 
the duty to protect
public interest by picking up the best among those 
available and willing to work nor can the States by their action frustrate, 
delay or negate the judicial process ofadministration of justice which so 
heavily banks upon the assistance rendered by the members of the Bar. 
3 8. To sum up, the following propositions are legally 
un~xceptionable: 
(i) 
The Government and so also all public bodies are trustees 
of the power vested in them. 
(ii) 
Discharge of the trust reposed in them in the best possible 
manner is their primary duty. 
715 
A 
B 
c 
D 
E 
F 
(iii) 
The power to engage, employ or recruit servants, agents, 
advisors and representatives must like any other power be 
exercised in a fair, reasonable, non-discriminatory and 
G 
objective manner. 
· (iv) 
The duty to act in a fair, reasonable, non-discriminatory 
and objective manner is a facet of the Rule of Law in a 
constitutional democracy like ours. 
H
716 
A 
B 
c 
D 
E 
F 
6 
H 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
(v) 
An action that is arbitrcry has no place in a polity governed 
by Rule of Law apart ji-0111 being offensive to the equality 
clause guaranteed by Article 14 of the Constitution <if India. 
(vi) 
Appointment of Gover.11nent counsel at the district level 
and equally so at the High Court level, is not just a 
professional engagement, but such appointments have a 
"public element" attached to them. 
(vii) 
Appointment of Gove;·nment Counsel 111ust like the 
discharge of any other function by the Govern111ent and 
public bodies, be only in public interest unaffected by any 
political or other extraneous considerations. 
(viii) The governme/lf and public bodies are und:!r an obligation 
to engage the 111ost competent of the lawyers to represent 
them in the Courts for it is only when those appointed are 
professionally competent that public interest can be 
protected in the Courts. 
(ix) 
The Gorermnent and public bodies are free to choose the 
method for selecting the best lawyers bi.t any such selection 
and appointment process must demonstrate that a search 
for the meritorious was undertaken and that the process 
was unaffected by any extraneous considerations. 
(x) 
No lawyer has a right to be appointed as a State! 
Government counsel or as Public Prosecutor at any level, 
nor is there any vested right to claim an extension in the 
term for which he/she is initially appointed. But all such 
candidates
can offer themselves for appointment, re-
appointment or extension in which event their claims can 
and ought to be considered on their merit, uninfluenced 
by any political or other extraneous considerations. 
(xi) 
Appointments made in an arbitrary jashion, without any 
transparent 111ethod of selection or for political 
considerations will be amenable to judicial review and 
. liable to be quashed. 
(xii) 
Judicial review of any such appoi11t111e11ts will, however, 
be limited to exa111ining whether the process is affected by 
any illegality, irregularity or perversity/irrationality. The 
Court exercising the power of judicial review will not sit in
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
717 
& ANR. [T.S. THAKUR, CJ!.] 
appeal to reassess the merit of the candidates, so long as 
A 
the method of appointment adopted by the competent 
authority does not suffer from any infirmity. 
39. Question No.3 is accordingly answered in the affirmative. 
Re: Question No.4 
40. What then are the ways out of the situation which has been as 
a governmental fiefdom that is immune to judicial review and correction? 
The Law Commission has, it is heartening to note, addressed a similar 
question at some length and made meaningful recommendations in its 
l 97th Report. The Commission while examining issues concerning 
appointment of public prosecutors observed: 
"The Sessions Judge who has knowledge of the caliber, 
experience and character of!awyers practicing in the Sessions 
Courts is well suited to suggest the best names of lawyers so 
that the interests of prosecution, the interests of the accused 
are fully taken care ol This being the logic behind the 
provision for consultation. any amendment by the States 
deleting the check .on arbitrary appointments of Public 
Prosecutors, will be violative of Art. 14 of the Constitution. 
The fundamental point - which has to be remembered - is that 
any law made by the Centre or State Legislature in regard to 
appointment of Public Prosecutors must conform to the 
principles governing administration of criminal justice in 
which the public prosecutor has an independent and special
role as stated in Chapter JI . In as much as the Public 
Prosecutor is a 'limb of the judicial process' and 'an officer 
of Court' as stated by the 18 Supreme Court (see Chapter I!), 
B 
c 
D 
E 
any method of appointment which sacrifices the quality of . F 
the prosecution or which enables State Governments to make 
appointments at their choice without proper screening. proper 
assessment of the qualifications. experience or integri(JI of 
the individuals. be they the Public Prosecutors selected from 
the Bar or appointed from among the Prosecuting Officers. 
will not stand the test of non-arbitrariness under Art. 14 of 
the Constitution of India. The scheme 1111lst provide for 
appointing Public Prosecutors who shall bear all the qualities 
mentioned in Chapter II". 
(emphasis supplied) 
G 
H
718 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
41 . Dealing with the appointment procedure of Public Prosecutors 
and the need to provide for proper checks as also the validity of any 
state amendment to section 24, removing these checks from the scheme 
of Section 24, the Commission observed: 
"Appointment procedure laid down in any legislation cannot 
B 
give arbitrary discretion to State Governments. There must be 
proper checks in the matter of appointment of Public 
Prosecutors/Addi. Public Prosecutors in 22 the Sessions Court 
so that they can be e(ficient in their functioning. objective 
and independent of the Police and the Executive. Any scheme 
c 
D 
E 
F 
G 
H 
of appointments without proper checks will be violative of 
Art. 14 of the Constitution of India. If the central legislation 
expressly requires consultation with Sessions Judge and that 
he should assess merit. experience and good character as a 
necessary condition for appointment as Public Prosecutors 
under sec. 24(4). then any State Amendment which deletes 
the provision relating to consultation with the Sessions Judge 
and to the above qualities required of the appointee. then 
such deletion by the State Legislature amounts giving a licence 
for arbitrary appointments and will violate Art. 14. In such 
cases. assent of the President to the State Amendment can be 
justifiably refused." 
(emphasis supplied) 
42. The Commission unequivocally supported the need for 
consultation with the Sessions Judge
and with the High Court, as the 
case may be, for appointment of the public prosecutors for those Courts 
in the following words: 
"We may reiterate that, so far as sec. 24(4) is concerned. the 
Public Prosecutor :S selection and appointment at the level of 
the Districts and the High Court cannot be left to the sweet 
will of the Government. Such a procedure has the danger of 
persons without adequate experience of conducting Sessions 
cases. or who lack in adequate knowledge of criminal law 
being appointed. There is even the likelihood of some of such 
appointees not maintaining the highest standards of conduct 
expected of a Public Prosecutor. Thus, while consultation 
under sec. 24(4) with the Sessions Judge cannot be dispensed 
with, we propose some extra provisions in sec. 24(4) requiring
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
that the Session Judge must give importance to experience in 
Sessions cases, merit and integrity. If such a provision is 
dispensed with by State Legislatures, obviously such 
amendments will violate Art. 14. This is so far as the posts of 
Public Prosecutor and 50% of posts of Addi. Public 
Prosecutor in the District are concerned. " 
(emphasis supplied) 
43. Consultation with the Sessions Judge for a Public Prosecutor 
in the District judiciary and with the High Court for one in the High 
Court is statutorily prescribed because of the importance of the 
appointment and the significance of the opinion of the Courts where the 
appointee has to work, as to his or her capacity and'professional ability. 
The statute does not admit of an appointment in disregard of the 
requirement of consultation. The Law Commission has, therefore, rightly 
held the consultative process to be a check on the power of appointment 
which cannot be left unregulated or uncontrolled, lest a person not suited 
or competent enough gets appointed to the position for other reasons or 
considerations. Consultation, in that sense, lends reassurance as to the 
professional ability and suitability of the appointee. The Commission has 
on that premise placed a question mark on the validity of State amendment 
that deletes from Section 24 of the Code of Criminal Procedure Code 
the need for consultation with the Sessions Judge or
the High Court. 
44. Taking a cue from the provisions of Section 24, we are inclined 
to hold that what serves as a check on the power of the Government to 
appoint a Public Prosecutor can as well be a check on the appointment 
of the State Counsel also. That is because, while the Public Prosecutor's 
power under the Code of Criminal Procedure Code gives him a distinctive 
position, the office of a State Counsel, in matters other than criminal, are 
no less important. A State Counsel by whatever designation called, 
appears in important civil and constitutional matters, service and tax 
matters and every other matter where substantial stakes are involved or 
matters or grave and substantial importance at times touching public 
policy and security of State are involved. To treat such matters to be 
inconsequential or insignificant is to trivialise the role and position of a 
State Counsel at times described as additional and even Senior Additional 
Advocate General. What holds good for appointment of a Public 
Prosecutor as a check on arbitrary exercise of power must, therefore, 
act as a check on the State's power to appoint a State Counsel as well 
719 
A 
B 
c 
D 
E 
F 
G 
H
720 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016) 4 S.C.R. 
especially in situations where the appointment is unregulated by any 
constitutional or statutory provision. Such a requirement is implicit in the 
appointing power of the State which power is in trust with the government 
or the public body to be exercised only to promote public interest. The 
power cannot be exercised arbitrarily, whimsically or in an un-canalised 
manner for any such exercise will fall foul of Article 14 of the Constitution 
oflndia and resultantly Rule of law to which the country is committed. 
45. We have while dealing with question No. I held that no lawyer 
has a right to be appointed as State Government counsel or as public 
prosecutor at any level nor does he have a vested right to claim extension 
in the term for which he/she is initially appointed. We have also held 
that all candidates who are eligible for any such appointment can offer 
themselves for re-appointment or extension in which event their claims 
can and ought to be considered on their merit uninfluenced by any political 
orother extraneous consideration. It follows that even the writ-petitioners 
cannot claim appointment or extension as a matter of right. They can at 
best claim consideration for any such appointment or extension upon 
expiry of their respective terms. Such consideration shall, however, 
have to be in accordance with the norms settled for such appointments 
and on the basis of their inter se merit,
suitability and performance if 
they have already worked as State counsel. To that extent, therefore, 
there is no difficulty. The question is what should be the mechanism for 
such consideration. There are in that regard two major aspects that 
need to be kept in mind. The first is the need for assessment and 
requirement of the State Governments having regard to the workload in 
different courts. As noticed earlier, appointments appear to have been 
made without any realistic assessment of the need for State counsel at 
different levels. Absence of a proper assessment of the requirement for 
State counsel leads to situations that have been adversely commented 
upon by the CAG in his report to which we have made a reference in 
the earlier part of this judgment. The problem gets compounded by 
those in power adding to the strength of government advocates not 
because they are required but because such appointments serve the 
object of appeasement or ptivate benevolence shown to those who qualify 
for the same. The CAG has in that view rightly observed that there 
ought to be a proper assessment of the need before such appointments 
are made. 
46. The second aspect is about the process of selection and 
assessment of merit of the candidates by a credible process. This process
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
can be primarily left to the State Government who can appoint a Committee 
of officers to carry out the same. It will be useful if the Committee of 
officers has the Secretary to Government, Law Department, who is 
generally a judicial officer on deputation with the Government as its 
Member-Secretary. The Committee can even invite applications from 
eligible candidates for different positions. The conditions of eligibility for 
appointment can be left to the Government or the Committee depending 
upon the nature and the extent of work which the appointees may be 
effected to handle. The process and selection of appointment would be 
fair and reasonable, transparent and credible if the Government or the 
Committee as the case may be also stipulates the norms for assessment 
of merit and suitability. 
4 7. The third stage of the process of selection and appointment 
shall in the absence of any statutory provisions regulating such 
appointments involve consultation with the District & Sessions Judge if 
the appointment is atthe district level and the High Court ifthe appointment 
is for cases conducted before the High Court. It would, in our opinion, 
be appropriate and in keeping with the demands of transparency, 
objectivity and fairness if after assessment and finalisation of the selection 
process a panel is sent to the Chief Justice of the High Court concerned 
for his views on the subject. The
Chief !ustice could constitute a 
Committee of Judges to review the names recommended for appointment 
and offer his views in regard to professional competence and suitability 
of candidates for such appointments. Appointments made after such a 
consultative process would inspire confidence and prevent any 
arbitrariness. The same procedure could be followed where candidates 
are granted extension in their terms of appointment in which case the 
Committee appointed by the government and that constituted by the 
Chief Justice could also look into the performance of the candidates 
during the period they have worked as State counsel. 
48. In the result, therefore, we dispose ofTransfer Petition No. I 073 
of2015 and Civil Appeal arising out of SLP(C) No. 8416 of2016 (CC 
No.54 70of2014) with the following directions: 
(1) 
The States of Punjab and Haryana shall undertake a realistic 
assessment of their need in each category in which State 
counsel are proposed to be appointed. 
(2) 
Based on the assessment so made, the States shall constitute 
721 
A 
B 
c 
D 
E 
F 
G 
a Selection Committee with such number of officers as the 
H
722 
SUPREME COURT REPORTS 
[2016] 4 S.C.R. 
A 
State Government may determine to select suitable candidates 
for appointment as State counsel. The Secretary, Department 
of Law in each State shall be the Member-Secretary of the 
Selection Committee. 
(3) 
The Committee shall on the basis of norms and criteria which 
B 
the Government concerned may formulate and in the absence 
of any such norms, on the basis of norms and criteria which 
the Committee may themselves formulate conduct selection 
of law officers for the State and submit a panel of names to 
the Chief Justice of Punjab and Haryana who may set up a 
c 
Committee of Judges to review the panel and make 
recommendations to the Chief Justice. The Chief Justice may 
based on any such recommendations record his views regarding 
suitability of the candidates included in the panel. The 
Government shall then be free to appoint the candidates having 
regard to the views expressed by the Chief Justice regarding 
D 
their merit and suitability. The procedure for assessment of 
merit of the candidates and consideration by the High Court 
will apply in"all cases where the candidates are already working 
as State counsel but are being given an extension in the term 
of their appointment. Having said that we must hasten to add 
E 
that we are not interfering with the appointments already made 
in the States of Punjab and Haryana which can continue to 
remain valid for the period the same has been made but any 
extension or
re-appointment shall go through the process 
indicated by us in the foregoing paragraphs. 
F 
(4) 
The writ-petitioners shall also be free to offer themselves for 
consideration before the Committee appointed by the State 
Government in which event their claims may also be considered 
having regard to their merits, suitability and performance as 
State counsel for the period they have worked as State counsel. 
(5) 
We make it clear that nothing said by us in the foregoing 
G 
paragraphs of this judgment shall affect the right of the State 
Governments to appoint any person eligible for such 
appointment as the Advocate General of the State in terms of 
Article 165 of the Constitution oflndia. 
(6) 
We further clarify that although we are primarily concerned 
H 
with the procedure regarding selection and appointment oflaw
STATE OF PUNJAB & ANR. v. BRIJESHWAR SINGH CHAHAL 
& ANR. [T.S. THAKUR, CJI.] 
officers in the States of Punjab and Haryana and although we 
have confined our directions to the said two States only yet 
other States would do well to reform their system of selection 
and appointment to make the same more transparent, fair and 
objective if necessary by amending the relevant LR Manuals/ 
Rules and Regulations on the subject. 
49. Since the issues that fell for determination in the Writ Petition 
No.20000of2011 also stand comprehensively determined by this order, 
the said petition shall also stand disposed of in the above terms. The 
parties are left to bear their own costs. 
723 
A 
B 
Kljlpana K. T~ipat)ly 
Transfer petition and Appeal disposed of. 
C