The order expressed anguish over the fact that in certain cases, recommendations were made by the district magistrate, having regard to the political affinity of the lawyers to the party in power.
In a major embarrassment to the Maharashtra government, Bombay High Court has slammed the Bharatiya Janata Party (BJP)-led government for "politicising" the appointment of new law officers and termination of existing officers before their tenure was to come to an end. Calling the termination of exiting law officers as "arbitrary and illegal", the Bombay High Court in a recent order has suspended implementation of the new appointments till January 2016.
"The power of the state government to appoint law officers of their choice cannot be disputed, but discontinuation of engagement of law officers in such a manner, as in this case, cannot be supported and shall have to be branded as arbitrary and illegal," read the order passed by the Aurangabad bench of Bombay High Court on December 17.
The court added that the appointment in such a post must not be political. "The manual states that a political activity by the district government counsel shall be a disqualification to hold the post." Within five months of coming into power, the BJP-led government issued a notice inviting applications from lawyers to make appointments to the posts of additional government pleader and assistant government pleader, additional public prosecutor and assistant public prosecutor, etc. with a clause that announced termination of existing law officers enmass, once the selection process of the new ones was complete.
The order further expressed anguish over the fact that in certain cases, recommendations were made by the district magistrate, having regard to the political affinity of the lawyers to the party in power.
"Those who do not have such political affinity, although competent, are not appointed. Legal Remembrancers Manual clearly forbids appointment of such a lawyer and if appointed, removal from his office. The district judge and the district magistrate, therefore, are duty bound to see that recommendation is not made due to any political affinity," the order added.
According to the petitioners – a bunch of public prosecutors – the new government, with an intention to install law officers of their choice, decided to remove the present law officers working in the High Court as well as in the subordinate courts "enmass".
"With a view to replace the law officers enmass, a notification came to be issued on March 13, 2015, inviting applications from lawyers for appointments to the posts. There was no specific order issued before the issuance of advertisement terminating appointments of law officers who were holding the posts and were yet to complete their tenure prescribed under the appointment orders issued to them. In the advertisement issued on March 13, a clause was inserted, which has an effect of terminating engagement of law officers automatically from the date of issuance of fresh appointment orders in pursuance to the advertisement issued by the government," the order read.
Furthermore, despite repeated hearings, the state government did not file a clear reply to the allegations made by the petitioners. "The failure of the state government to file an affidavit controverting the contentions, together with the circumstances pointed out above, persuade us to accept the contentions raised by the petitioners," the order concluded.
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