'Degrades' AG's Office: Allahabad HC Strikes Down Amendment Shifting Appointment Powers From Advocate General To Law Secretary

The Allahabad High Court has struck down the Uttar Pradesh Advocate General and Law Officer Establishment Service (Fourth Amendment) Rules, 2022 to the extent that they replace the Advocate General of Uttar Pradesh with the Principal Secretary (Law), State of Uttar Pradesh as the appointing authority of various posts.

The principle Rules which govern the service conditions of the employees of the Advocate General and Law Officers establishment were amended on 27^th December, 2022. The amended rules sought to remove the Advocate General as the appointing authority (consequently, as the disciplinary authority) of most of the ministerial staff in his office. Instead, such powers of the Advocate General have been vested in the Principal Secretary (Law) of the State of Uttar Pradesh.

The bench comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava observed,

“The amended rules clearly degrade the office of the Advocate General and render it vulnerable to outside pressures and extraneous influences besides compromising the entire functioning of the office of the Advocate General. In the long run it is the cause of law constitutional order and justice which will suffer irremediably as a result of the aforesaid amendments”

The Court further observed,

“The amended impugned service Rules create a dichotomy where the constitutional responsibility remains in the Advocate General but administrative power to appoint, supervise & discipline the staff resides in the Legal Remembrancer/Principal Secretary (Law). The consequences of the service rules are not far to seek. The service rules will create authorities times working at cross purposes. This will neither be the interest of department nor in public interest.”

The Court held that setting up of parallel disciplinary authority takes away the independence of the office of the Advocate General which would in turn result in loss of ability of the Advocate General to “give independent advice regardless the pulls of vested interests or pressures of political expediency.”

The Court further struck down the rules as being violative of Article 14 of the Constitution of India. The Court held,

“It is interesting to see that the Advocate General is retained as the appointing authority of the most subordinate posts. However, the Legal Remembrancer/Principal Secretary (Law), who is subordinate to the Advocate General in the order of precedent has been made the appointing authority of all senior posts in the office of the Advocate General. The said classification is unreasonable and arbitrary which does not subserve the object which is sought to be achieved and is violative of Article 14 of the Constitution of India.

Arguments Advanced

U.P. State Law Officers Ministerial Staff Association High Court, Allahabad challenged the rules on grounds being contrary to Article 165 of the Constitution of India. It was contended that the rules were violative of Article 14 of the Constitution as they created an unreasonable classification. Further, it was contended that the amended service rules will lead to loss of authority of the office of the Advocate General and will adversely impact the functioning of the high office. Lastly, it was pleaded that the amended service rules do not subserve the purpose sought to be achieved by the State Government.

Defending the amendment to the service rules, Additional Advocate General contended that since the Advocate General is very busy discharging duties of the office, the control of the staff of the Advocate General Office is being vested in the Principal Secretary (Law), State of Uttar Pradesh. It was contended that office of the Advocate General will not be impacted by the said amendment as his functions are not being interfered with.

It was contended that the State being the employer of the staff of the office of the Advocate General has the right to frame rules of service. “The rules are consistent with Article 14 and no one can question the prerogative of the State to frame service conditions for the benefit of the employees and the departments.”

High Court Verdict

The Court observed that the post of Advocate General of a State is a constitutional office under Article 165 of the Constitution of India. The Court observed that by tradition, Advocate General is the senior most law officer of the State and pater familias (male head of a family) of the Bar.

“The Advocate General is entitled to precedence over all other advocates and is also given the right to first audience in Courts as a matter of practice. The Advocate General of the State of the Uttar Pradesh is an ex officio member of the Bar Council of the State of Uttar Pradesh. On this footing alone the Advocate General can be called the First Advocate of the State.”

The Court referred to Joginder Singh Wasu v. State of Punjab wherein the Supreme Court observed that

“The position of the State vis-a-vis the Advocate General may be described in the words of William Shakespeare:

“Whose worth is unknown,

Although his height be taken.”

Further, the Court observed that though the office of the Advocate General is subjected to political push and pulls by the State, it should “rise above the narrow trammels of political or party associations and render independent wise and scholarly advice.” Relying on the meaning of fiduciary relationships as given by the Apex Court in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, the Court held that the relationship between State and its Advocate General is fiduciary in nature. It is also much deeper and wider than a lawyer client relationship.

The Court observed that in order to discharge his duty effectively under various laws, the Advocate General requires a support staff and rules to regulate their services. The rules have to be framed in a manner to not interfere or hamper in the discharge of constitutional functions of the Advocate General.

“The State Government has to create the appropriate conditions and conducive environment to enable the Advocate General to perform the constitutional and statutory duties of the office.”

Regarding the administration of the office of the Advocate General, the Court held that “The State Government shall ensure that the Advocate General has supervisory control as well as disciplinary powers over the staff in the office of the Advocate General and State Law Officers Establishment.”

The bench presided by Chief Justice Diwaker held that

“Service rules are created in order to rationalize the functioning of the department and also establish a clear hierarchy of authorities which is essential for efficient administration. Arbitrary service rules can lead to loss of administrative efficiency and even cause the breakdown of functioning of the department. The service rules are designed to ensure that the disciplinary power vests in the authority which is endowed with the responsibility of running the department. It is a fundamental principle of good administration to vest the power and responsibility in the same office.”

The Court held that the amended rules took away the power given by the Constitution of India to the Advocate General, thereby degrading the office by making Principal Secretary (Law), State of Uttar Pradesh the appointing as well as disciplinary authority of the support staff of the Office of Advocate General.

The Court held that complete takeover of the office of Advocate General by the Principal Secretary (Law), State of Uttar Pradesh would create “serious impediments in the functioning of the office of the Advocate General and maintaining the confidentiality of the communications and legal advice tendered by the Advocate General.” Accordingly, the Court held that the amended service rules were in violation of Article 165 of the Constitution of India.

The Court noted that the Advocate General was still the appointing authority for the lowest category staff (Watchman, Bundle lifter and Sweeper) of his office but not for the Research Assistant, Computer Operator-Grade A, Computer Operator Grade-B, Additional Private Secretary, Review Officer, Review Officer (Accounts). This classification of appointing power, according to the Court, was arbitrary and unreasonable, thereby violating Article 14 of the Constitution of India.

“The petty mindedness shown by the concerned officials in creation of the rules may yield some short term gains or low level satisfaction; however it eventually causes lasting damage to a high constitutional office charged with important functions of the State. It is the responsibility of the State Government to always ensure that the precepts constitutional morality are not sacrificed by petty minded officials for narrow personal goals or expedient political interests.”

The Court observed that it was amusing that the Additional Advocate General defended the amended rules by arguing that the Advocate General is very busy and “over committed” to his work. The Court held that dedication to work and paucity of time cannot be reasons for degrading a constitutional office by taking away its essential functions.

Accordingly, the Court struck down the amended rules to the extent that Principal Secretary (Law), State of Uttar Pradesh was made the appointing and disciplinary authority of the officers and staff of the office of the Advocate General.

While holding that the earlier rules would be operative till new rules are formed in compliance of the judgment, the Court observed that “the State Government shall always ensure that the sanctity of the office of the Advocate General is maintained and the prestige of the incumbent is upheld.”

Advocates Imran Syed and Krishna Shukla appeared for the petitioners.

Case title - U.P. State Law Officers Ministerial Staff Association High Court, Allahabad And Another vs.The State Of U.P. And 2 Others

Case Citation: 2023 LiveLaw (All) 445