M.T.
Khan & Ors Vs. Government of Andhra Pradesh & Ors [2004] Insc 10 (5 January 2004)
Cji
S.B. Sinha
[Arising
out of SLP (Civil) No.14098 of 1998] V.N.KHARE, CJI.
Leave
granted.
The
authority of a State to appoint Additional Advocate General in terms of Article
165 of the Constitution of India is the core question involved in this appeal
which arises out of a judgment and order dated 30.4.1998 passed by the High
Court of Andhra Pradesh in Writ Petition No.13202 of 1998.
The
appellants herein filed the aforementioned writ petition questioning the
appointment of two Additional Advocate Generals by the Government of Andhra
Pradesh on various grounds. The main contention of the appellants raised before
the High Court as also before us, however, is that having regard to the
expression used in Article 165 of the Constitution of India appointment of more
than one Advocate General is not contemplated therein.
The
High Court negatived the said contention holding :
(i)
Having regarding to Article 367 of the Constitution of India as also Section 13
of the General Clauses Act, 1897, the provision in singular for appointment of
an Advocate General would include plural;
(ii)
Having regard to the fact that Additional Advocate Generals have been appointed
in the States of Rajasthan, Jammu & Kashmir and Kerala, there is no reason
as to why Additional Advocate Generals cannot be appointed in the State of
Andhra Pradesh.; and
(iii)
Merely because there is a post of Additional Advocate General, the same would
not mean and imply that Additional Advocate General can perform the
constitutional statutory functions.
In
support of its findings, reliance has been placed on M.K. Padmanabhan vs. State
of Kerala [(1978) 1 LAB.I.C. 1336]; Regional
Transport Authority, Jodhpur vs. Sitaram [AIR 1993 Rajasthan
76]; and Bhadreswar vs. S.N. Choudhury [AIR 1985 Gauhati 32].
Mr.Har
Dev Singh, learned Senior Counsel appearing on behalf of the appellants, in
support of the appeal contended that having regard to the fact that Article 165
of the Constitution of India is clear and unambiguous and, thus, being not open
to any interpretation, the provisions of Section 13 of the General Clauses Act
as also Article 367 of the Constitution of India could not be invoked as the
same applies in dealing with interpretation "unless the context otherwise
requires".
The
submission of the learned senior counsel is that Article 367 is applied having
regard to Article 372 of the Constitution of India which in turn deals with
adaptation of existing law, which has got no relevance in the instant case. The
learned counsel urged that if such an interpretation is given to Article 165 of
the Constitution of India, Articles 53, 63, 74, 76, 124, 148, 168, 216, 234 and
280 of the Constitution of India will have to be interpreted similarly which
would lead to absurdity. It was contended that Advocate General appointed under
Article 165 of the Constitution of India is not only required to discharge
constitutional functions assigned to him, as for example, he has a right to
address the Houses of Legislature under Article 177 of the Constitution; but
also statutory functions in terms of Section 302 of the Code of Criminal
Procedure, Section 92 of the Code of Civil Procedure and Section 23 of the
Advocates Act. Furthermore, he as a leader of the Bar has a right of
pre-audience. It was submitted that as the appointment of Additional Advocate
General by the Government of Andhra Pradesh in purported exercise of its power
under Article 165 of the Constitution of India was without jurisdiction, the
same are liable to be set aside and such appointment cannot be saved by tracing
their source of power to Article 162 of the Constitution of India.
Mr. Sudhir
Chandra, learned Senior Counsel appearing on behalf of the respondents, on the
other hand, contended that the appointment of Additional Advocate General has
necessitated because of the growth and spread of the State activities, as a
result thereof it is not possible for an Advocate General alone to handle the
heavy work involved on behalf of the State. The learned counsel further
contended that even if it be held that the State has no power to appoint
Additional Advocate General in terms of Article 165 of the Constitution of
India, such power must be held to exist under Article 162 thereof.
Article
165 of the Constitution of India reads thus :
"165.
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." A bare
reading of the said provision clearly go to show that power of the Governor of
the State in this behalf is to appoint a person who is qualified to be
appointed a Judge of a High Court.
Similar
expressions have been used by the Constitution-makers for the purpose of
appointment of a holders of constitutional posts including the Attorney General
of India, Comptroller and Auditor General of India, the Chief Justice and
Judges of the High Courts and Supreme Court. The constitutional scheme, thus, is
that when a constitutional post is required to be filled up by a person having
the qualification specified therefor, 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. The reason therefor is obvious. If more than one person is
appointed to discharge the constitutional functions as also the statutory
functions, different Advocate Generals may act differently resulting in a
chaos. The State and the other litigants would in such an event would be
totally at a loss as to which opinion the decision to be acted upon. The office
of the Advocate General is a public office. He not only has a right to address
the Houses of Legislature but also is required to perform other statutory
functions in terms of Section 302 of Code of Criminal Procedure, Section 92 of
the Code of Civil Procedure and Section 23 of the Advocates Act. Each of such
functions by the Advocate General is of great public importance. Such public
functions are required to be performed by the holder of a constitutional post
having regard to his stature and keeping in view the fact that the State
intended to endow such responsibility upon him.
The
Government of a State as a litigant can appoint as many as it likes lawyers to
defend it. For the said purpose, the State is not prohibited from conferring
such designation on such legal practitioners as it may deem fit and proper.
But, the State, in our considered view, cannot appoint more than one Advocate
General.
The
decisions of the High Courts including the impugned judgment, as noticed
hereinbefore, have proceeded on the basis that having regard to the provisions
of Section 13 of the General Clauses Act and Article 367 of the Constitution of
India, a singular would include a plural. The High Courts while adopting the
said view, in our opinion, committed an error insofar as they failed to take
into consideration the crucial words occurring in Article 367 of the
Constitution "unless the context otherwise requires".
It is
a well-settled principle of law that the provisions of the Constitution shall
be construed having regard to the expressions used therein. The question of
interpretation of a constitution would arise only in the event the expressions
contained therein are vague, indefinite and ambiguous as well capable of being
given more than one meaning. Literal interpretation of the Constitution must be
resorted to. If by applying the golden rule of literal interpretation, no
difficulty arises in giving effect to the constitutional scheme, the question
of application of the principles of interpretation of a statute would not arise
only.
In Gurudevdatta
Vksss Maryadit and Others vs. State of Maharashtra and Others [(2001) 4 SCC 534] , this Court held :
"Further
we wish to clarify that it is a cardinal principle of interpretation of statute
that the words of a statute must be understood in their natural, ordinary or
popular sense and construed according to their grammatical meaning, unless such
construction leads to some absurdity or unless there is something in the
context or in the object of the statute to suggest to the contrary. The golden
rule is that the words of a statute must prima facie be given their ordinary
meaning. It is yet another rule of construction that when the words of the
statute are clear, plain and unambiguous, then the courts are bound to give
effect to that meaning, irrespective of the consequences. It is said that the
words themselves best declare the intention of the law-giver. The courts have
adhered to the principle that efforts should be made to give meaning to each
and every word used by the legislature and it is not a sound principle of
construction to brush aside words in a statute as being inapposite surpluses,
if they can have a proper application in circumstances conceivable within the
contemplation of the statute..." In Balram Kumawat vs. Union of India and
Others [(2003) 7 SCC 628], this Court held :
"The
Courts will therefore reject that construction which will defeat the plain
intention of the Legislature even though there may be some inexactitude in the
language used. [See Salmon vs. Duncombe [(1886) 11 AC 627 at 634]. Reducing the
legislation futility shall be avoided and in a case where the intention of the
Legislature cannot be given effect to, the Courts would accept the bolder
construction for the purpose of bringing about an effective result. The Courts,
when rule of purposive construction is gaining momentum, should be very
reluctant to hold that the Parliament has achieved nothing by the language it
used when it is tolerably plain what it seeks to achieve. (See BBC (1990) 2 All
ER 118 at 122-3)" We are, however, unable to agree with the submission of
Mr. Har Dev Singh to the effect that the appointments of Additional Advocate
Generals cannot be traced to the source of the State's power under Article 162
of the Constitution of India. It is now well-settled principles of law that
non-mentioning or wrong mentioning of a provision of law does not invalidate an
order in the event it is found that a power therefor exists.
In
Union of India vs. Khazan Singh [AIR 1992 SC 1535], this Court held:
"...The
Appellate Authority did not mention in its order as to under which sub-rule of
Rule 25(1) the appeal was being disposed of.
The
tribunal while noticing Rule 25(1)(e) of the rules and conceding that the
Appellate Authority could remand the case to the disciplinary authority for
further inquiry under the said sub-rule, grossly erred in setting aside the
order on the concession of the learned counsel to the effect that the Appellate
Authority had passed the order under Rule 25(1)(d) of the Rules..." In
State of Karnataka vs. Krishnaji Srinivas Kulkarni and
Others [(1994) 2 SCC 558], this Court held:
"...Quotation
of a wrong provision does not take away the jurisdiction of the authorities to
inquire under Section 79-B(3) of the Act..." The matter relating to the
appointment of a legal practitioner by a Government may be subject-matter of a
legislation. The State by amending the provisions of Sections 24 and 25 of the
Code of Criminal Procedure may make a law regulating the appointment of the
Public Prosecutor or Additional Public Prosecutor. Such a law can also be made
for regulating appointment of other State counsel. In absence of any
legislation in this behalf, various States have laid down executive
instructions.
Thus,
the State in exercise of its jurisdiction under Article 162 of the Constitution
of India, is, in our considered view, competent to appoint a lawyer of its
choice and designate him in such manner as it may deem fit and proper. Once it
is held that such persons who are although designated as Additional Advocate
Generals are not authorised to perform any constitutional or statutory
functions, indisputably such an appointment must be held to have been made by
the State in exercise of its executive power and not in exercise of its
constitutional power. Consequently, Additional Advocate General so appointed is
not in constitutional scheme and does not hold constitutional office.
For
the reasons aforementioned, we are of the opinion that the impugned Government
orders need not be set aside. For the aforementioned we upheld the judgment
under appeal, albeit for different reasons. The appeal is dismissed. No costs.
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