K V FRANCIS Vs. T KARUNAKARAN NAMBIAR

JUDGEMENT

(1.) Petitioner seeks to issue a writ of quo warranto calling upon the first respondent to show cause to satisfy as under what authority he is holding the post of Additional Advocate General (Taxes) of the State. According to the petitioner, the first respondent was not appointed pursuant to a decision taken by the Cabinet. It is contended that on 22nd July, 1994 there was a meeting of the Council of Ministers presided over by the Chief Minister but the appointment of first respondent was not in the agenda and, therefore, no discussion took place in the meeting of the Council of Ministers regarding the appointment of the first respondent. The further case of the petitioner is that the second respondent, the Chief Secretary, Government of Kerala forwarded the name of the first respondent to the Governor of Kerala as a Cabinet decision for issuing appointment order under Art.165(1) of the Constitution of India. Petitioner relies on certain newspaper reports to prove that there was no such Cabinet decision. Petitioner alleges that the appointment of Additional Advocate General is to be made under Art.165(1) of the Constitution of India and the Governor can act only in accordance with the advice given by the Council of Ministers and, therefore, the appointment of the first respondent is not constitutionally valid and, hence, this original petition.

(2.) I heard petitioner's counsel and also the Advocate General Shri. S. Narayanan Poti. Counsel for the petitioner argued that the appointment of the first respondent as Additional Advocate General was not on the basis of any decision taken by the Council of Ministers and, therefore, it is illegal. Learned Advocate General denied this fact and contended that under Art.163(3) of the Constitution this Court shall not inquire into the decision taken by the Council of Ministers.

(3.) A Division Bench of this Court in Padmanabhan v. State of Kerala ( 1977 KLT 916 ) held that the appointment of Additional Advocate General is to be made in accordance with the provisions contained in Art.165 of the Constitution and the office of Additional Advocate General is a Constitutional post and the appointment is to be made by the Governor of the State.