Padmanabhan vs State of Kerala and Another

Gopalan Nambiyar, C.J.—The Petitioner seeks a writ of quo warranto, challenging the appointment of an Additional Advocate-General for this State, for a term of three years from 1st January 1976, by Ext. P-1 order, dated 26th December 1975. By Ext. P-2 order of the same date, the term of office of the present incumbent as the Advocate-General of the State was extended for a further period of three years, from 1st January 1976. Both the appointments were under Article 165(1) of the Constitution of India. It is not for us to concern ourselves with the policy underlying these appointments or even with the propriety of duplicating the Office of Advocate-General. A writ of quo warranto having been sought for, we propose to address ourselves only to the question whether the 2nd Respondent has title to the Office of the Additional Advocate-General or is a usurper of the said office.

The writ petition was admitted by a learned Judge on 29th March 1976 and notice was ordered to the Respondents. On the same date on which notice was ordered, and before the same had been served on the other side, the learned Judge recorded his view that in view of the importance of the question involved, the petition should be heard by a Division Bench. There was a ruling of a learned Judge of this Court in Antony v. State of Kerala 1975 KLT 678, where a writ of quo warranto was prayed for against the redesignation of the post of the Senior Government Pleader as Additional Advocate-General. The contention of the State in that writ petition, as seen from the judgment, was that even after his appointment as Additional Advocate-General, the 2nd Respondent continued to be a Law Officer whose conditions of service, duties and remuneration are governed by the Rules (G.O.) prescribed for the purpose, and that the Additional Advocate-General did not have any of the powers, duties or privileges of the Advocate-General. It was the State''s contention that even after the said appointment of the 2nd Respondent, there was only one Advocate-General for the State. The learned Judge, in dismissing the writ petition, observed that Article 165 of the Constitution, did not bar the appointment of an Additional Advocate-General, and cited Article 367 of the Constitution and Section 13 of the General Clauses Act, in support of the said conclusion. The learned Judge, who admitted this writ petition and expressed the view that it may be heard by a Division Bench, did not notice the judgment in Antony v. State of Kerala 1975 KLT 678

Article 165 of the Constitution of India reads as follows:

Advocate-General for the State. -- (1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.

(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions, conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.

Clause (1) deals with the appointment to the office; Clause (2) provides for the duties and functions of the Advocate-General; and Clause (3) provides for the duration of his office. One important Constitutional function or privilege of the Advocate-General, provided by Article 177 of the Constitution, is his right to speak, and otherwise take part in, the proceedings of the Legislative Assembly of the State, or, in States having a Legislative Council, in both Houses, but he shall have no right to vote. Regarding his duties and functions under any other law for the time being in force, Counsel for the Petitioner stressed the following: u/s 8(4) of the Bar Councils Act, as it stood at the time of impugned appointment, the Advocate-General was to be the Ex officio Chairman of the Bar Council; (the position is altered by subsequent amendments and today the Chairman is not chosen ex officio, but is to be elected); he has a right of pre-audience u/s 23 of the Advocates Act, 1961; he has certain special functions and responsibilities to discharge under Sections 91 and 92 of the Code of Civil Procedure, regarding public nuisances and public charities; he has special functions under Sections 194, 333 and 495 of the Code of Criminal Procedure; and an important part to play in the launching and prosecution of actions under the Contempt of Courts Act, 1971.

The Petitioner''s counsel contended that a duplication of the office of the Advocate-General or the appointment of more than one person to that office would provoke a serious conflict in the discharge of the important constitutional and statutory responsibilities and functions of the Advocate-General; and for that reason, it was contended that a duality of the office was not intended or contemplated by the framers of the Constitution. If two or more Advocate-Generals were to be appointed under the Article, who, it was asked, was to address the Assembly under Article 177 of the Constitution, if the Assembly decided to hear the Advocate-General, on any particular aspect? who, in such a case, was to be the Ex officio Chairman of the Bar Council? (so long as the Bar Councils Act required such a choice); who again, was to discharge the important function of entering a nolle prose qui under the Code of Criminal Procedure?, or act as protector of public charities u/s 92 of the Code of Civil Procedure?, or discharge the special responsibility in respect of Contempt of Court? These and other aspects were expatiated at great length to impress on us that a plurality of Advocate-Generals, functioning under the Constitution, was not to be envisaged at all. Our attention was drawn to Article 76 of the Constitution providing in almost similar terms for the appointment of the Attorney-General, With lessor degree of appropriateness, our attention was also called to the following Articles of the Constitution, providing for certain Constitutional offices, namely, Article 52 (President); Article 63 (Vice-President); Article 93 (Speaker and Deputy Speaker); Article 124 (Chief Justice of India); Article 148 (Comptroller and Auditor-General of India); Article 153 (Governors); Article 178 (Speaker and Deputy Speaker of the Legislative Assembly); Article 280 (Finance Commission); Article 315 (Public Service Commission); and Article 338 (Special Officer for Scheduled Castes, Scheduled Tribes, etc.). With varying degrees of emphasis and effect, it was argued that a duplication of these Constitutional offices was not intended or contemplated.

We have given these arguments our very careful thought and consideration. We should not be understood as belittling the importance and the relevancy of these considerations in duplicating a responsible Constitutional office such as that of the Advocate-General. But the policy and the propriety underlying the duplication is one thing, and its legality, quite another. We are concerned only with the latter aspect of the question. The scheme of Article 165 of the Constitution, appears to us, also, to some extent, at any rate, to keep the appointment to the office as separate from the functions and responsibilities appertaining to it. As noticed already, while Clause (1) of the Article deals with the appointment, Clause (2) provides for functions and responsibilities and Clause (3), for the duration of the office. It is here that we have to take note of Article 367(1) of the Constitution, which provides:

Interpretation. -- (1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.

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No adaptations and modifications having relevance have been brought to our notice. Turning to the General Clauses Act, 1897, Section 13 thereof enacts:

In all Central Acts and Regulations, unless there is anything repugnant in the subject or context.

(1) words importing the masculine gender shall be taken to include females; and

(2) words in the singular shall include the plural, and vice versa.

The above provision was relied on by the State to contend that the provision in the singular for appointment of an Advocate-General would include the plural. Both on the terms of Article 367 and on the language of Section 13 of the General Clauses Act this implication is to be read "unless there is anything repugnant in the subject or context". Is there, then, anything repugnant in the subject or context preventing the appointment of two incumbents to the office of Advocate-General. May be, such appointment appointments may provoke unseemly scrambles or conflicts or clashes in the discharge of functions. These, however, are not insurmountable, and may be left to resolve themselves by adjustment of human relationships, by development of healthy conventions, or by the delineation by rules and instructions. In the case on hand, we have Government notification No. 368/81/76/Law, dated 20th August 1976 which makes certain amendments to the notification dated 1st November 1956 relating to the rules regarding the duties, remuneration, etc., of the Advocate-General. In the preamble itself to the parent notification, the words "Additional Advocate-General", were to be added after the term ''Advocate-General''. By Clause (2) of the proceedings, duties and functions of the Advocate-General were defined by sub-clauses (i) to (xix). Sub-clauses (xviii) and (xix) read as follows:

(xviii) to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the Governor;

(xix) to discharge the functions conferred on him by or under the Constitution or any other law for the time being in force:

Clause 3 is as follows:

Duties and functions of the Additional Advocate-General. -- (1) The Additional Advocate-General shall perform the same duties and functions as are assigned to the Advocate-General in items (i) to (xviii) (both inclusive) of Rule 2, subject to the allocation of work by the Advocate-General except the power to supervise and control the work of the Law Officers attached to the High Court referred to in item (xi) of that rule;

(2) The functions conferred on the Advocate-General by or under the Constitution or any other law for the time being in force may be discharged by the Additional Advocate-General also;

(3) In Part II, for the heading "The Advocate-General shall receive remuneration as specified below":, the following heading shall be substituted, namely:

"Remuneration of the Advocate-General";

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In view of the above delegation of functions, the Constitutional, statutory and legal functions are to be performed by the Advocate-General. Sub-clause (2) of Rule 3 merely enables the Additional Advocate-General to discharge the Constitutional and legal functions of the Advocate-General. But this is an enabling power to be exercised during the temporary absence or non-availability of the Advocate-General, and certainly not in antagonism to his powers. In the face particularly of this demarcation of responsibilities as between the two incumbents for the office, we are unable to find any clash or conflict of duties, which should compel a conclusion that a duality of the office cannot be thought of at all. On the language of the Constitutional provisions, it is difficult to countenance such an argument. The provisions of the rules framed under Article 165(2) and (3) which we have extracted above, persuade us to hold that in actual practice it is possible to secure a smooth and harmonious functioning of two incumbents in the same office.

We were also informed at the Bar that at least in two States of this country, (Rajasthan and Jammu and Kashmir) Additional Advocate-Generals have been functioning without demur or challenge. Counsel for the Petitioner contended that these appointments have not been shown to be under Article 165 of the Constitution; the Government Pleader countered stating that there is no reason to think that these would not have been under the said Article. Beyond these statements neither counsel could supply more tangible information or material, in regard to the genesis of the appointments or the source of power to which they could be traced. We do not propose to overstress the circumstance; but, at the same time, we feel we cannot blind our eyes to the disclosed facts in at least two of the States.

The Petitioner''s counsel cited the decision of a Full Bench of this Court in Balakrishna Iyer v. Krishnan 1968 KLT 8 which had decided that the expression ''Subordinate Judge'' would not include an Additional Subordinate Judge. We do not propose to examine the decision elaborately It was clearly concerned with a case, where, under the provisions of the concerned Act, a Subordinate Judge was to function as a persona designata and the incongruities of allowing an Additional Subordinate Judge to function, were manifest, as was exposed by the decision. In other words, there was enough from the context to indicate a contrary conclusion.

The decision in Law Society v. United Service Bureau Limited (1934) I.K.B. 343 again, has no application. The same only decided that u/s 46 of the Solicitors Act, 1932, the expression "person" in the singular cannot be taken to include "persons" in the plural also, so as to authorise conviction of a body of persons constituting a firm of counsel who had carried on their profession without taking out or obtaining the necessary certificate, a contravention liable to be visited with conviction by a Criminal Court. The decision is quite understandable on the well-recognised reluctance of the courts to expand the region of criminal liability except where the same has been clearly indicated by the context.

The learned Government Pleader cited to us the decision of the Privy Council in Sin Poh Amalgamated (H.K.) Ltd. v. Attorney-General and Anr. (1965) 1 All E.R. 225 where Lord Pearce, formulated a test to find out "contrary intention" in the context within the meaning of the Interpretation Act (worded similarly as the General Clauses Act). The relevant observation is as follows:

The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such an amendment to the bill, would have rejected it. Here their lordships cannot find any such reason.

There is thus no ''contrary intention'' sufficient to exclude the operation of the Interpretation Ordinance, and the appointment was validly made.

The principle was followed by the Judicial Committee in Blue Metal Industries v. R.W. Dilley (1969) 3 All E.R. 437. Even propounding and accepting the test, we asked the Government Pleader and the Petitioner''s counsel, whether it was not any man''s guess as to how the Legislature would have reacted to a proposal to have a plurality of Advocate-Generals. We do not think we got a recordable reply.

The Government Pleader pointed out the historical evolution of Article 165 of the Constitution vis-a-vis its predecessor Section 55 under the Government of India Act. He reminded us of the deletion of the provisions of Sub-clause (4) of Section 55 of the earlier Act providing for the appointment of Advocate-General on the individual judgment of the Governor, from Article 165 of the Constitution. This was emphasised as indicating a shift to make the offices more political in character. We also take note of the fact that under the Constitution, the Advocate-General''s salary has become an item subject to annual vote of the Legislature rather than one charged on the Consolidated fund, as it was, under the Government of India Act. But these, we are afraid, do not help us to obtain a decisive answer to the question of "contrary intention" posed by Lord Pearce in the Privy Council case noticed above.

The Petitioner feebly raised the plea of mala fides. The averments of the Petitioner hardly make out any case of mala fides, and even unanswered, we would have taken no note of them. They have been controverted in the counter-affidavit; and we have no hesitation to reject the case of mala fides.

On the whole, we are not satisfied that the Petitioner has made out a case to show that the 2nd Respondent is a usurper of the office of Additional Advocate-General. No case for the issue of a writ of quo-warranto has been made out. We dismiss this writ petition with no order as to costs.