NEW DELHI: Only a sitting Judge of the High Court concerned can be appointed Chairman of the State Legal Services Authority (SLSA), the Supreme Court has held.

A Bench of Justice Arijit Pasayat and Justice D.K. Jain passed this order on a writ petition filed by the Supreme Court Bar Association alleging that appointment of a retired Judge of the High Court as Chairman of the SLSA concerned in different States "falls foul of the desired legislative effect."

The Bench pointed out that most of the States and Union Territories had accepted the genuineness of the problems highlighted in the petition.

"It is to be noted that except four States of West Bengal, Uttar Pradesh, Uttaranchal [Uttarakhand] and Manipur, in other States and UTs a sitting judge is functioning as Executive Chairman."

The Bench said: "In the affidavit filed by the National Legal Service Authority, it has been accepted that the functioning of the SLSAs, where retired judges have been appointed as Chairman, is not satisfactory."

The Bench said, "Though the allegation of any preferential treatment has been denied in the affidavits of all States, we would like to illustrate the State of Orissa's case. The fact situation is quite disturbing. The action of the then Chief Justice was not principle-oriented but was person-oriented. This is what is the main grievance of the writ petitioner. Therefore, there is ample scope for favouritism in appointment of a retired judge."

Writing the judgment, Mr. Justice Pasayat said: "Another disturbing feature is that some of the State Governments have asked for panel of names to be given. Calling for such a panel in essence results in substitution of objectivity with subjectivity. This is to be avoided. Though in terms of Section 6 (2) of the LSA Act a retired Judge can be appointed, but that shall have to be in exceptional circumstances. The advantage of having a sitting judge as the Chairman far outweighs the disadvantages. Therefore, normal rule is that a sitting judge should be appointed as the Chairman and only when unusual difficulties exist, a retired judge may be appointed. That has to be the exception and not the rule."

Referring to some States where retired judges had functioned for some time, the Bench directed them to re-consider the matter in consultation with the Chief Justice and do the needful within four months.

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