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CASE NO.:

Appeal (civil) 4 of 2004

PETITIONER:

M.T. Khan & Ors.

RESPONDENT:

Government of Andhra Pradesh & Ors.

DATE OF JUDGMENT: 05/01/2004

BENCH:

CJI

S.B. Sinha)

JUDGMENT:

J U D G M E N T

[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

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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

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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

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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

Enterprises Vs. Hi-Tech Xtravision Ltd.,

(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

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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.

L.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T...

....T.......T.......T.......T.......T.......T.......T....R.

Appeal (civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited#Collector of Centra

l Excise, Chandigarh#2003-11-25#25622#4051#P. VENKATARAMA REDDI###

Appeal (crl.)#Appeal (crl.) 104-106 of 2003#2003#Bikau Pandey and Ors.#State of Bihar#2003-

11-25#25623#104-106#DORAISWAMY RAJU###

Appeal (civil)#Appeal (civil) 10906 of 1996#1996#Shanti Kumar Panda#Shakutala Devi#2003-11-

03#25624#10906#R.C. LAHOTI###

Appeal (civil)#Appeal (civil) 11483 of 1996#1996#Amrendra Pratap Singh#Tej Bahadur Prajapat

i & Ors.#2003-11-21#25625#11483#R.C. LAHOTI###

Appeal (civil)#Appeal (civil) 9130 of 2003#2003#Ameer Trading Corporation Ltd.#Shapoorji Da

ta Processing Ltd.#2003-11-18#25626#9130#CJI###

Appeal (civil)#Appeal (civil) 14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.R

s., etc. etc.#State of Uttar Pradesh#2003-11-28#25627#14178-14184#Doraiswamy Raju###

Appeal (crl.)#Appeal (crl.) 1968 of 1996#1996#Goa Plast (P) Ltd.#Chico Ursula D'Souza#2003-

11-20#25628#1968#B.P. Singh###

Writ Petition (crl.)#Writ Petition (crl.) 199 of 2003#2003#Ashok Kumar Pandey#The State of

West Bengal#2003-11-18#25629#199#DORAISWAMY RAJU###

Appeal (crl.)#Appeal (crl.) 20 of 2003#2003#Surendra Paswan#State of Jharkhand#2003-11-28#2

5630#20#DORAISWAMY RAJU###

Appeal (crl.)#Appeal (crl.) 278 of 1997#1997#Vidyadharan#State of Kerala#2003-11-14#25631#2

78#DORAISWAMY RAJU###

Appeal (crl.)#Appeal (crl.) 292 of 1997#1997#State of Madhya Pradesh.#Awadh Kishore Gupta a

nd Ors.#2003-11-18#25632#292#DORAISWAMY RAJU###

###State of Punjab & Anr.#M/s Devans Modern Brewaries Ltd. & Anr.#2003-11-20#25633##CJI.###

Appeal (crl.)#Appeal (crl.) 331 of 1997#1997#Shriram#State of Madhya Pradesh#2003-11-24#256

34#331#DORAISWAMY RAJU###

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Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P.

& Ors.#Toddy Tappers Coop. Society, Marredpally & Ors.#2003-11-17#25635#3630-3631#CJI.###

Appeal (crl.)#Appeal (crl.) 371-372 of 2003#2003#Ram Dular Rai & Ors.#State of Bihar#2003-1

1-27#25636#371-372#S.B. Sinha.###

Appeal (civil)#Appeal (civil) 4075-4081 of 1998#1998#Nair Service Society#Dist. Officer, Ke

rala Public Service Commission & Ors.#2003-11-17#25637#4075-4081#CJI.###

Appeal (civil)#Appeal (civil) 4698-4700 of 1994#1994#State of U.P. & Ors.#Lalji Tandon (Dea

d)#2003-11-03#25638#4698-4700#R.C. LAHOTI###

Appeal (crl.)#Appeal (crl.) 506 of 1997#1997#State of Karnataka#Puttaraja#2003-11-27#25639#

506#DORAISWAMY RAJU###

Appeal (crl.)#Appeal (crl.) 519-521 of 2003#2003#Goura Venkata Reddy

Vs.#State of Andhra Pradesh#2003-11-19#25640#519-521#DORAISWAMY RAJU###

Appeal (crl.)#Appeal (crl.) 530-531 of 2003#2003#Bhargavan & Ors.

#State of Kerala #2003-11-17#2564

1#530-531#DORAISWAMY RAJU###

Appeal (civil)#Appeal (civil) 7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.

#Arnavaz Rustom Printer & Anr. #2003-11-24#25642#7371#R

.C. LAHOTI###

Appeal (civil)#Appeal (civil) 9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad,

District, Andhra Pradesh #Nookala Rajamallu and Ors. #2003-11

-21#25643#9205-07#DORAISWAMY RAJU###

Transfer Petition (crl.)#Transfer Petition (crl.) 77-78 of 2003#2003#K. Anbazhagan

#The Superintendent of Police & ors.#2003-11-18#25644#77

-78#S.N. VARIAVA###

Appeal (civil)#Appeal (civil) 7868 of 1995#1995#ITW Signode India Ltd.

#Collector of Central Excise #2003-11-19#25645#7868#CJI###