PADMANABHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. P1 order dated 26121975. By Ext. P2 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 art. 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

(2.) ND respondent has title to the office of the Additional Advocate-General or is a usurper of the said office. 2. The writ petition was admitted by a learned judge on 29 31976 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 Anton y v. State of Kerala (1975 KLT. 678), where a writ of quo warranto was prayed for against the re-designation 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 governed are by the Rules (GO; 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 Art. 165 of the constitution, did not bar the appointment of an Additional Advocate-General, and cited Art. 367 of the Constitution and S. 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 ).

(3.) 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 is 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 Art. 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 criminal Procedure Code?, or act as protector of public charities under S. 92 of the Civil Procedure Code?, 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 Art. 76 of the Constitution providing in almost similar terms for the appointment of the Attorney-General. With lesser degree of appropriateness, our attention was also called to the following Articles of the Constitution, providing for certain Constitutional offices, namely, Art. 52 (President); Art. 63 (Vice-President); Art. 93 (Speaker and Deputy Speaker); Art 124 (Chief Justice of India); Art. 148 (Comptroller & Auditor-General of India); Art. 153 (Governors); Art. 178 (Speaker & Deputy Speaker of the Legislative assembly); Art. 280 (Finance Commission); Art. 315 (Public Service Commission); and Art. 338 (Special Officer for Scheduled Castes, Scheduled Tribes, etc. ). With varying degree of emphasis and effect, it was argued that a duplication of these Constitutional offices was not intended or contemplated.