Allahabad HC Dismisses Plea Against Appointment Of Additional Advocates General [Read Order]

The Division Bench comprising Justices Pankaj Kumar Jaiswal and Dinesh Kumar Singh observed that appointment of Additional Advocates General is necessary to ensure proper/smooth assistance of the Court on behalf of the State.

It clarified that an Additional Advocate General only discharges "urgent and routine work" of the office of Advocate General and is not entrusted with the powers of the Advocate General, as enshrined under the Constitution.

Background

The Petitioner, a practicing Advocate (Asok Pande) had challenged para-3 of Circular dated June 26, 2020, whereby the State Government had instructed that in absence of Advocate General, the urgent and routine work at Allahabad shall be performed by Additional Advocate General Manish Goyal, whereas at Lucknow, the same will be performed by Additional Advocate General Vinod Kumar Shahi.

It was contended thus:

• Advocate General is an important functionary of the Government and constitutional authority and, therefore, para-3 of the impugned Circular is unconstitutional as it appoints two Additional Advocate Generals to perform routine and urgent work of the office of the Advocate General in case he is not available;
• All the powers vested with the Advocate General for the State either by the Constitution or by the different enactments are to be performed only and only by the Advocate General
• In case the Advocate General, by reason of illness or otherwise, is not available, the State Government shall appoint new incumbent as Advocate General to perform all the duties of his office. According to him, in absence of the Advocate General, work of the Advocate General cannot be entrusted to the Additional Advocate General.

Reliance was placed on MT Khan v. State of Andhra Pradesh & Ors., whereby the Supreme Court had held that when a constitutional post is required to be filled up by a person having the qualification specified therefore, he would "alone" perform the duties and functions, be it constitutional or statutory, attached to the said office. The Constitution does not envisage that such functions be performed by more than one person.

Pertinently, Article 165 of the Constitution deals with the appointment and functions of Advocate General of the State. His duty is to give advice to the State Government upon such legal matters and to perform such other duties of a legal characters as may be referred or assigned to him by the Governor and to discharge the functions conferred on him by or under the Constitution or by any other law for the time being in force.

Findings

Refuting the first contention of the Petitioner, that Advocate General is an important functionary of the Government the Court observed that even though in terms of Article 165(3) the office is held by the Advocate General during the pleasure of the Governor and he receives such remuneration as the Governor may determine, yet the Advocate General cannot be treated as a "Government servant" and he is not the subordinate of the Government of the State.

It explained thus:

"With respect to the discharge of functions and duties of his office, the Advocate General is not controlled by the Governor or the State Government because, while giving advice to the State Government upon any legal matter referred to him or whilst performing duties of a legal character assigned by the Governor or with respect to the discharge of functions conferred on him by or under the circumstances, he has to exercise his discretion, though according to best of his ability in manner which he considers best."

Refuting the remaining two contentions, the Court held that para-3 of the impugned circular merely instructs that in absence of the Advocate General, "urgent and routine work" shall be performed the Additional Advocate General.

"This para shows that it is only an administrative instructions by way of impugned Circular in order to function the urgent and routine work of the office of Advocate General at Allahabad as well as at Lucknow in absence of the Advocate General. It is not the instruction that the power as enshrined by the Advocate General under the Constitution shall be performed by the Additional Advocate General," the Court held.

The Court has placed its reliance on a Division Bench ruling of the Kerala High Court in MK Padmanabhan, v. State of Kerala & Anr., 1978 Lab. I.C. 1336, where an identical contention was considered.

The Division Bench had held therein:

"Contention that the State Government could not appoint an Additional Advocate General is meritless. The Governor of a State has, under the Constitution, to appoint an Advocate General. That power includes the power to appoint an Additional Advocate General as well. Article 367 of the Constitution provides that unless the context otherwise requires, the General clauses Act, 1897 shall apply for the interpretation of the Constitution. There is nothing repugnant in the subject or context which would exclude the applicability of the General Clauses Act. The provisions of General Clauses Act shall therefore, be pressed into service while interpreting Article 165."

In the present case also, the Allahabad High Court concluded that the Petitioner was unable to point out any other provision in the Constitution, which in any way was repugnant to the impugned Circular.

Case Details:

Case Title: Asok Pande v. Union of India

Case No.: PIL (C) No. 12352/2020

Quorum: Justices Pankaj Kumar Jaiswal and Dinesh Kumar Singh

Click Here To Download Order

Read Order