Arijit Pasayat, J. - (1.) This petition under Article 32 of the Constitution of India, 1950 (in short the Constitution) has been filed by the Supreme Court Bar Association raising points of considerable importance. It is the case of the writ petitioner that appointment of a retired Judge as Chairman of the concerned State Legal Service Authority in different States falls foul of the desired legislative effect. It is stated that appointment of retired Judges has the effect of stalling the effectiveness in functioning of the State Legal Service Authorities. With reference to Section 6(2) of the Legal Services Authorities Act, 1987 (in short the Act), it is pointed that the serving or retired Judge of the High Court can be nominated by the Governor in consultation with the Chief Justice of the High Court. The writ petitioner has pointed out that under the Act the State Government is required to constitute a body to be called the Legal Service Authority of the State to exercise the powers and/or assigned to State Authority under the Act. Sub-section (2) of Section 6 provides that the State Authority shall consist of the Chief Justice of the High Court who shall be the Patron-in-Chief and a Judge of the High Court to be nominated by the Governor in consultation of the Chief Justice of High Court who shall be the Executive Chairman.
(2.) Several difficulties encountered in case a retired Judge is appointed as a Chairman, have been highlighted by the writ-petitioner. Most of the States and the Union Territories have accepted the genuineness of the problems highlighted in the writ petition. It is to be noted that except four States i.e West Bengal, Uttar Pradesh, Uttranchal and Manipur, in other States and the Union Territories a sitting Judge is functioning as Executive Chairman. In the State of Orissa prior to passing of the impugned order dated 12.1.2007 a retired Judge had been appointed as the Executive Chairman. In line with the order dated 12.1.2007 presently in the State a retired Judge is functioning as the Executive Chairman. One of the main grievances of the writ petitioner-association is that there is scope for favouritism in case a retired Judge is appointed in preference to a sitting Judge. Several instances have been highlighted. In its affidavit filed by the National Legal Service Authority (in short NALSA), it has been accepted that the functioning of the State Legal Service Authorities where retired Judges have been appointed as Chairman is not satisfactory. The averments in the writ petition which need to be highlighted is as follows: "Whereas in regard to the State Legal Authority alone, strangely, the head need not be a sitting High Court Judge. The relevant provisions of the Act regarding State Legal Service Authority contained in Section 6(2) are as follows: "(2) A State authority shall consist of- (a) the Chief Justice of the High Court who shall be the Patron-in-Chief; (b) A serving or retired Judge of the High Court, nominated by the Governor, in consultation with the Chief Justice of the High Court, who shall be the Executive Chairman; and (c) such other members, possessing such experience and qualifications as may be prescribed by the State Government, to be nominated by the Government in consultation with the Chief Justice of the High Court." The Authority could be headed by a retired Judge of the High Court. For a retired Judge, the Act does not prescribe any upper age-limit. In regard to every other Tribunal, the Act concerned itself prescribes the upper age limit as 68 years or 5 years tenure. This Act alone does not prescribe any age limit, or a limited tenure, when it comes to a retired Judge. For a sitting Judge all limitations as to age etc. come automatically since he would hold the post ex officio. The position of the chairperson of Legal Services Authority at State Level is very crucial. A sitting Judge will be a far better person and he can exercise his powers more effectively compared to a retired Judge. Since the head of National Legal Services Authority has to be the Chief Justice of India and the head of the District Legal Services Authority has to be the District Judge, the scheme of the Act should be understood to be that the head of the State Legal Services Authority also should be a sitting Judge of the High Court. Moreover, the provision appears to suggest that the Ist choice has to be a sitting Judge, and only when it is not possible to appoint a sitting Judge, in the alternative, a retired Judge could be considered. The State Govt. cannot avoid a sitting Judge and go in for a retired Judge straightway. Even otherwise, when one analyses functions of the State Legal Services Authority, it would be more appropriate to have a sitting Judge as its head for effective implementation of the objects of the Act. The following are the main functions of the Legal Services Authority at the State Level: (a) To give effect to the policy and directions of the Central Authority. (b) Give legal service to persons who satisfy the criteria laid down under this Act; (c) Conduct Lok Adalats; (d) Undertake preventive and strategic legal aid programmes; and (e) Perform such other functions as the State Authority may, in consultation with the Central Government, fix by regulations. Most of the functions are intrinsically interwoven with the duties and the powers of the High Court under Article 235 and other Articles of the Constitution. Even if it is felt that a retired Judge may be of help, one retired Judge could be accommodated as one of the members of the State Legal Services Authority. The petitioner has come to know that in various States in the country there is a move to take away the Legal Services Authority from the control of the respective High Court."
(3.) It is submitted that even where retired Judges are appointed to head the Commission, it becomes a never-ending process.;