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Judgment
E. Padmanabhan, J.—The Petitioner, a political party in the State, prays for issue of writ of certiorari to call for the records relating to G.O.
Ms. No. 1291, Public Department, dated 18.10.1997 on the file of the first respondent and quash the same.
The petitioner, Periyar Dravidar Kazhagam, represented by its President Anoor Jagadeesan, has filed the present writ petition. The petitioner, in
the affidavit filed in support of the writ petition states that he is the President of the Periyar Dravidar Kazhagam. According to the Petitioner,
Periyar E.V. Ramasamy founded the Self-Respect Movement during the Year 1925 as a revolt against the Brahmin imperialism and for the
upliftment of the Non-Brahmin Community. This movement awakened Non-Brahmins and certain safeguards were brought by the State
Government. According to the petitioner, the present ruling D.M.K. Party is off-spring of the Periyar''s Self-Respect Movement.
It is stated that the first respondent had appointed the second respondent, a Brahmin as the Additional Advocate General in the State of Tamil
Nadu. The said Government Order is being challenged in this writ petition mainly on two grounds:
(1) In terms of Article 165 of the Constitution, no appointment of Additional Advocate General could be made and it is impermissible, besides the
appointment is liable to be quashed as un-constitutional.
(2) The Policy of the ruling party in the State is wedded to Periyar Self-Respect Movement, i.e., the movement for non-Brahmins and as such the
first respondent State Government is estopped from appointing a Brahmin as an Additional Advocate General and the very appointment of
Brahmin to a Constitutional post by the ruling D.M.K. Party is opposed to its proclaimed policy and hence the appointment of second respondent
is also arbitrary and liable to the quashed by this Court.
Mr.S. Doraiswamy, the learned counsel for the petitioner raised the said contention and elaborated his arguments at the time of admission.
The learned counsel for the petitioner referred to ARticle 165, 52, 63, 74, 76, 124, 148, 153 and 163 of the Constitution and contended that a
combined reading of the said ARticles would make it clear that there could be an Advocate General and there cannot be more than one Advocate
General or Additional Advocate General as the case may be. The learned counsel for the petitioner pointed out that the policy of ruling DMK
Party and its ideology are based upon Self-Respect Movement, which is a movement for Non-Brahmins and the appointment of a Brahmin as
Additional Advocate General by the party in power is being opposed to its ideology and principles and it is impermissible. While elaborating the
contentions, it was further submitted by the learned counsel that the Constitution does not permit appointment of more than one Advocate General
and as such the appointment is unconstitutional.
It is further pointed out that the privileges of the Advocate General cannot be delegated to another person and the functions of Advocate
General cannot be partitioned between two or more persons, besides, the Advocate General has got a role to play under the provisions of the
Advocates Act, Contempt of Courts Act, CPC and the Advocate General has statutory as well as administrative functions to be performed, as a
quasi judicial authority and such functions cannot be delegated to any one. The Advocate General has got the right to address the Legislative
Assembly and such right cannot also be delegated or partitioned between two Advocate Generals, appointed by the State. It is pointed out that
whenever the Government resigns, the Advocate General also automatically submits resignation, as it is nothing but a political appointment. It is
further pointed out that prior to Periyar''s Self-Respect Movement, the Brahmins alone have been entitled for education, while non-Brahmins have
been deprived of the same and if non-Brahmins hear the teaching, hot-lead should be poured into the ears and if he recites the teaching, his tongue
should be severed.
Learned Counsel Mr. Doraiswamy contended that as long as the caste system continues, the supremacy of Brahmins will continue and the
second respondent cannot change himself all on a sudden. Learned counsel Mr. Doraiswamy also referred to an earlier appointment of Advocate
General when DMK Party came to power and appointed V.P. Raman, a Brahmin as the Advocate General, which appointment was opposed by
its colleagues and his appointment lasted only for 2-1/2 years. Various other appointments were also referred to by the petitioner. It is also pointed
out that Late Sridevan, who is a Brahmin was appointed as the Government Pleader by the then DMK Government and the learned counsel refers
to certain of his alleged conduct with respect to which we are not at all concerned, here.
It is further pointed out that the ruling DMK Party cannot deviate from its fundamental policy and choose a Brahmin to represent the Non-
Brahmin Movement and it has brought shame to the ""Self-Respect Movement.
The learned counsel further referred to the averment that the election manifesto announced by the ruling DMK Party was that it would stick to
its policy of Non-Brahmin Movement and the Public have voted in favour of the Ruling Party to oust the Brahmin Rule and hence the present
DMK Government is estopped from changing its policy by appointing a Brahmin as Advocate General after coming back to power.
The learned counsel Mr. Doraiswamy elaborated his contentions while claiming that DMK party is for the improvement of the oppressed Non-
Brahmins and as such the second respondent, a member of the Brahmin Community should not be appointed and advanced his arguments and
elaborated it with reference to the political movement and its achievements. This Court at the time of hearing expressed itself and called upon the
counsel to confine himself to legal contentions and the Court is not concerned with faiths or issue of various political parties as well as the political
issues or decisions or policy of a particular political party either ruling or opposite party.
However, Mr. Doraiswamy insisted that this Court has to consider both the contentions viz., (i) Legal (ii) Political faith; despite this Court
pointing out that such an attitude cannot be appreciated and the second aspect will not fall under the domain of judicial review. This Court also
pointed out that the appointment to the Constitutional post of Advocate General or Additional Advocate General as the case may be, will not be
subjected to such considerations or political, racial or caste aversions, besides pointing out that the Governor has appointed the second respondent
as the Additional Advocate General and it is desirable for the petitioner to confine himself to legal points. This Court made it clear that it will not be
justified in dwelling upon the question of caste, race, creed or community or religion, while considering the suitability or otherwise of an individual
to hold the constitutional post as the Constitution itself prescribes the qualification.
This Court also pointed out to the learned counsel appearing for the petitioner that if the said contentions and such faiths, as projected by the
petitioner are to be accepted, this would mean denial of a Constitutional post to an individual merely as he happened to be a member of a
particular community or race and such denial or preference of a person to a Constitutional post, or merely because he belonged to particular race
or caste or community is impermissible and such policy or approach or consideration is opposed to Articles 14, 15 and 16 of the Constitution, as
well as the basic principles of equality.
The second contention based upon political faiths or beliefs raised by the learned counsel for the petitioner is just mentioned and does not
deserve consideration under Article 226 of the Constitution. It is to be pointed out that no material had been placed to show that the present ruling
party in the State had proclaimed that it is against Brahmins and it will never appoint a member of the Brahmin Community to any post or office.
No basis has been made out by the learned counsel in support of such a contention. Even if it be so, or assuming the assertion as correct such an
approach or ideal run counter to Constitutional provisions and they are per se unenforceable and this Court in law will not entertain such a plea nor
it is legally sustainable. All political declarations or agendas of a party as such arc not justiciable nor enforceable unless the Governor of the State
implements and such action has to be tested on the anvil of Articles 14, 15 and 16 of the Constitution. The assertion of Mr. S. Doraiswamy, who
tried to convert Court proceedings into political proceedings is impermissible and this attempt cannot be appreciated. The second contention
deserves to be mentioned alone and deserves to be rejected straightway. The first contention deserves consideration.
As regards the first contention, it is essential to refer to Article 165 of the Constitution. Article 165 reads thus:
(1) The Governor of each Slate shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the
State.
(2) I 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 e 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.
The very Article which provides for appointment of Advocate General for the State provides that the Governor of each State shall appoint a
person who is qualified to be appointed as a Judge of the High Court, to be Advocate General for the State. The Advocate General so appointed
holds office during the pleasure of the Governor. The duty of the Advocate General is to give advice to the Government of the State 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.
Although in terms of Article 165(3), the office is held by the Advocate General during the pleasure of the Governor and 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. 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.
It is further to be pointed out that neither the Governor nor the State Government are empowered to call upon the Advocate General to
discharge his function or to perform his duties in the manner in which they seek or like or choose or prefer.
In the present case, it is not the case of the petitioner or his counsel that the second respondent is not qualified to be appointed nor it is the
case of the petitioner that he had incurred any disqualification for being appointed as the Advocate General in the State. The learned counsel for
the petitioner could not and cannot point out his finger against the second respondent in respect of his qualification. There is no controversy with
respect to the fact that the second respondent is qualified to be appointed as the Advocate General as he is qualified in all respects to be appointed
as a Judge of a High Court. It is no where whispered that the second respondent had incurred any disqualification at any point of time either prior
to or at the time of appointment or subsequently.
Before referring to the various authorities referred to by the learned counsel for the petitioner in support of his contention that there could be
only one Advocate General and appointment of Additional Advocate General is impermissible under the Constitution, it is useful to refer to Article
367 of the Constitution. In terms of Article 367, General Clauses Act, 1897 would apply to the interpretation of Article 165 of the Constitution
besides other provisions. This position is not being disputed by Mr. Duraiswamy. In terms of Sub-section (2) of Section 13 the words in the
singular shall include the plural and vice versa. As such it is Constitutionally permissible. In terms of Article 165, ""Advocate General"" includes not
only one person to be appointed as Advocate General but also includes many Advocate General including an Additional Advocate General, who
may be appointed by the Governor.
In this respect, it may be pointed out that other High Courts have taken the same view and in my view, very rightly. I have given my earnest
consideration to the above said contention and I am unable to accept either of the contentions of the learned counsel for the petitioner.
In M.K. Padmanabhan, v. State of Kerala and Anr. 1978 L. I.C. 1336 the Kerala High Court had occasion to consider the identical
contention. The Division Bench of the Kerala High Court held thus:-
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:
367 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.
xxxxx xxxxx xxxxx
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 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.
It is also to be pointed out that the learned counsel was unable to point out any other provision in the Constitution, which is in any way
repugnant to or unless the context otherwise requires.
The Division Bench Judgment of the Kerala High Court in M.K. Padmanabhan v. State of Kerala and Anr. 1978 L.I.C. 1336 has been
followed by a Division Bench of Gauhati High Court in Bhadreswar Tan Ti v. S.H. Choudhury and Anr. AIR 1985 Gau. 32. The Division Bench
held thus,
Thus other contention that the State Government could not appoint an Additional Advocate General is also 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. Now on the language of Section 13,
General Clauses Act the provision in the singular for appointment of Advocate-General must include the plural. The Governor, has, therefore, the
power to appoint an Additional Advocate General also. In the view we have taken, we find support from a decision of the Kerala High Court in
M.K. Padmanabhan v. State of Kerala 1978 LIC 1336.
Identical view has also been expressed by a Division Bench of Rajasthan High Court in the case reported in Regional Transport Authority,
Jodhpur Vs. Sita Ram, . In the light of these pronouncements and the Constitutional provisions this Court rejects the first contention and holds that
the appointment of Additional Advocate General is Constitutionally permissible and valid in law.
The learned counsel for the petitioner also pointed out that such appointment of Additional Advocate General may lead to a conflict or clash or
scramble in the discharge of functions. In my considered view, the same cannot be a reason to hold that the impugned Government Order is illegal
or constitutionally invalid or impermissible under any of the provisions of the Constitution. These points however, are not unsurmountable as it
could be resolved by adjustment by the two Constitutional appointees and it is nothing but adjustment of human relationship by development of
healthy co- ordination or this could also be regulated by rules and regulations or instructions as may be prescribed by the Governor. Hence this
argument of the leaned counsel for the petitioner also cannot be sustained.
The learned counsel for the petitioner referred to Articles 52 and 63 and contended that there could be only one President and one Vice-
President and there cannot be more than one or plurality of President or Vice-President. The learned counsel out of over enthusiasm had ignored
the very scheme of the Constitutional provisions of Articles 53, 60, 63 and 153 of the Constitution.
The learned counsel also referred to Articles 74, 76, 124, 148 and 163. Article 74 specifically provides that thee shall be a Council of
Ministers with the Prime Minister at the head, to aid and advise the President. Hence it is obvious that there could be only one Prime Minister. The
same reasoning applies to Article 76 as well as Articles 124 and 148. Article 163 also provides that thee shall be a Council of Ministers with the
Chief Minister. The said Constitutional provision obviously and without any doubt excludes the application of Section 13 of the General Clauses
Act, as the context of those Article definitely requires otherwise. With respect to those provisions, Section 13 of the General Clauses Act can
neither be adopted nor be applied. This contention of the learned Counsel for the petitioner cannot be sustained in law as the very scheme of the
Constitution and the context of the said Article otherwise requires.
It has to be pointed out that under Article 65, in the event of occurrence of any vacancy in the office of the President by reason of his death or
resignation the Vice-President shall act as President until the date on which the new President is elected in accordance with Part V Chapter-I of
the Constitution. Article 70 provides that Parliament can make it clear as it thinks fit for the discharge of the functions of the President in any
contingency not provided for in Part V Chapter-I. In exercise of the power conferred by Article 70, the Parliament has enacted the President
(Discharge of Functions) Act, 1969, to provide that in the event of occurrence of vacancy in the office of both the President and the Vice-
President by reason of death, resignation, removal or otherwise, the Chief Justice of India, or in his absence, the senior-most Judge of the Supreme
Court of India available shall discharge the functions until a new President is elected. In the very nature of the Constitutional office, which the
President or the Vice-President or the Governor holds as already pointed out and in the scheme of the Constitution, Section 13 of the General
Clauses Act stands excluded and this also is indicated in Article 367 and it very much provides so.
In the circumstances, this Court holds that there are no merits in the first contention raised by the learned counsel for the petitioner and the
appointment of the second respondent as the Additional Advocate General is valid, which appointment in no way contravenes the Constitutional
provisions.
This Court has already rejected the second contention. Before parting with the case, it is also to be pointed out even according to Mr. S.
Doraiswamy, the learned counsel appearing for the Petitioner, the founder of Self-Respect Movement, E.V.Ramasamy had endeared himself for
the upliftment of the poor and the down trodden members of Non-Brahmin communities. The said leader, rationalist according to him had never
objected to nor he refused to associate himself with members of Brahmin Community, but what E.V. Ramasamy opposed is the Brahmanical
conduct or character, who denounce other Non-Brahmins as untouchables. It has been proclaimed by the said E.V. Ramasamy, Leader of
Rationalist Movement and the founder of Self-Respect Movement that Dravidian Movement or Rationalists had never propagated such principles
or expressed such attitude.
This Court has to frown upon the conduct of the petitioner in bringing forth such a contention that no Brahmins could be appointed by the
Governor to a Constitutional post. It is equally very harsh to hear the contention that the second respondent, merely because he was born as
Brahmin, cannot be allowed to hold or is ineligible to Constitutional post in the State, much less the post of Advocate General, when he is qualified
in all respects and is suitable to hold the post to which he has been appointed.
The Writ Petition is dismissed. Consequently W.M.P.No. 26098 of 1997 is also dismissed.
Before parting with the case, it is purposeful to conclude this order by reciting a Thirukkural on ''Impartiality''
Which means:-
The Alpha and the Omega of righteous life is propriety; and propriety requireth that thou must give each man his due whether he be to stranger, or
a friend, or an enemy."" (V.V.S.)
If justice, failing not, its quality maintain, giving to each his due - it is man''s one highest gain"" - (G.U.POPE)
This impartially had obviously been followed in the appointment of second Respondent.