M.T. KHAN AND ORS. versus GOVERNMENT OF ANDHRA PRADESH AND ORS.

V. N. KHARE, CJ. Leave granted.

p. 120, margin B

The authority of a State to appoint Additional Advocate terms of Article 165 of the Constitution of India is the core question in this appeal which arises out of a judgment and order dated passed by the High Court of Andhra Pradesh in Writ Petition 1998.

p. 120, margin C

The appellants herein filed the aforementioned writ petition the appointment of two Additional Advocate Generals by the Government Andhra Pradesh on various grounds. The main contention of raised before the High Court as also before us, however, is that to the expression used in Article 165 of the Constitution of India of more than one Advocate General is not contemplated therein.

p. 120, margin D

The High Court negatived the said contention holding regarding to A11icle 367 of the Constitution of India as also Section General Clauses Act, 1897, the provision in singular for appointment of Advocate General would include plural; (ii) Having regard to Additional Advocate Generals have been appointed in the States Jammu & Kashmir and Kerala, there is no reason as to why Advocate Generals cannot be appointed in the State of Andhra (iii) Merely because there is a post of Additional Advocate General, would not mean a.nd imply that Additional Advocate General can constitutional statutory functions.

p. 120, margin E

In support of its findings, reliance has been placed Padmanabhan v. State of Kera/a, [1978] 1 LAB.LC. 1336; Regional Authority, Jodhpur v. Sitaram, AIR (1993) Rajasthan 76 and S.N. Choudhury, AIR (1985) Gauhati 32.

p. 120, margin G

Mr. Har Dev Singh, learned Senior Counsel appearing on appellants, in support of the appeal contended that having regard 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".

pp. 120–121, margin G

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 I65 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 tern1s of Section 302 of the Code of Criminal Procedure, Section 92 of the Code of Civil Procedure and Secti1>n 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.

p. 121, margin B

Mr. Sudhir Chandra, learned Senior Counsel appearing on behalfofthe 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.

p. 121, margin E

Article 165 of the Constitution of India reads thus : "165. Advocate-General for the State~(I) 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.

p. 121, margin G

(2) It shall be the duty of the Advocate General to the Government of the State upon such legal matters, such other duties of a legal character, as may from time referred or assigned to him by the Governor, and to functions conferred on him by or under this Constitution law for the time being in force.

p. 122, margin A

(3) The Advocate-General shall hold office during the Governor, and sh"lll receive such remuneration as may determine."

p. 122, margin B

A bare reading of the said provision clearly go to show the Governor of the State in this behalf is to appoint a person who to be appointed a Judge of a High Court. Similar expressions by the Constitution-makers for the purpose of appointment of constitutional posts including the Attorney General of India, Comptroller Auditor General of India, the Chief Justice and Judges of the and Supreme Court. The constitutional scheme, thus, is constitutional post is required to be filled up by a person having qualification specified therefor, he would alone perform functions, be it constitutional or statutory, attached to the said Constitution does not envisage that such functions be performed than one person. The reason therefor is obvious. If more than appointed to discharge the constitutional functions as also functions, different Advocate Ge~erals may act differently resulting The State and the other litigants would in such an event would a loss as to which opinion the decision to be acted upon. The Advocate General is a public office. He not only has a right Houses of Legislature but also is required to perform other statutory in terms of Section 302 of Code of Criminal Procedure, Section Code of Civil Procedure and Section 23 of the Advocates Act. functions by the Advocate General is of great public importance. functions are required to be performed by the holder of a constitutional having regard to his stature and keeping in view the fact intended to endow such responsibility upon him.

p. 122, margin B

The Government of a State as a litigant can appoint as many lawyers to defend it. For the said purpose, the State is not prohibited conferring such designation on such legal practitioners as it may proper. But, the State, in our considered view, cannot appoint Advocate General.

p. 122, margin G

M.T. KHAN GOVT. OF A.P. [V. N. KHARE, C.i]

p. 123

The decisions of the High Courts including the impugned noticed hereinbefore, have proceeded on the basis that having provisions of Section 13 of the General Clauses Act and Article Constitution of India, a singular would include a plural. The while adopting the said view, in our opinion, committed an they failed to take into consideration the crucial words occurring 367 of the Constitution "unless the context otherwise requires".

p. 123, margin A

It is a well-settled principle of law that the provisions of shall be construed having regard to the expressions used therein. of interpretation of a constitution would arise only in the event contained therein are vague, indefinite and ambiguous as well being given more than one meaning. Literal interpretation of the must be resorted to. If by applying the golden rule of literal no difficulty arises in giving effect to the constitutional scheme, of application of the principles of interpretation of a statute only.

p. 123, margin B

In Gurudevdatta Vksss Maryadit and Ors. v. State of Maharashtra Ors., [2001] 4 SCC 534, this Court held :

p. 123, margin D

"Further we wish to clarify that it is a cardinal interpretation of statute that the words of a statute must in their natural, ordinary or popular sense and construed their grammatical meaning, unless such construction absurdity or unless there is something in the context of the statute to suggest to the contrary. The golden words of a statute must prima facie be given their ordinaiy It is yet another rule of construction that when the statute are clear, plain and unambiguous, then the courts to give effect to that meaning, irrespective of the consequences. said that the words themselves best declare the intention giver. The courts have adhered to the principle that efforts made to give meaning to each and every word used by and it is not a sound principle of construction to brush in a statute as being inapposite surpluses, if they can application in circumstances conceivable within the contemplation the statute ... "

p. 123, margin D

In Bairam Kumawat v. Union 'of India and Ors., [2003] this Court held :

p. 123, margin A

"The Courts wi therefore reject that construction defeat the plain intention of the Legislature even though some inexactitude in the language used. [See Salmon (1886) 11 AC 627 at 634]. Reducing the legislation avoidf:d and in a case where the intention of the Legislature be given effect to, the Courts wou Id accept the bo for the purpose of bringing about an effective result. .when rule of purposive construction is gaining momentum, very reluctant to hold that the Parliament has achieved language it used when it is tolerably plain what it (See BBC Enterprises v. Hi-Tech Xtravision Ltd.,

p. 124, margin A

118 at 122-3)"

p. 124, margin C

We are, however, unable to agree with the submission Singh to the effect that the appointments of Additional Advocate cannot be traced to the source of the State's power under Article Constitution of India. It is now well-settled principles of mentioning or wrong mentioning of a provision of law does order in the event it is found that a power therefor exists.

p. 124, margin C

Jn Union of India v. Khazan Singh, AIR (1992) SC held:

p. 124, margin D

" ... The Appellate Authority did not ·mention in its which sub-rule of Rule 25(1) the appeal was being tribunal while noticing Rule 25(\)(e) of the rules and the Appellate Authority could remand the case to authority for further inquiry under the said sub-rule, setting aside the order on the concession of the learned effect that the Appellate Authority had passed the 25(\)(d) of the Rules ... "

p. 124, margin E

In State of Karnataka v. Krishnaji Srinivas Kulkarni 2 SCC 558, this Court held :

p. 124, margin F

" ... Quotation of a wrong provision does not take away

p. 124, margin G

of the authorities to inquire under Section 79-8(3) of

p. 124, margin G

The matter relating to the appointment of a legal Government may be subject-matter of a legislation. The State the provisions of Sections 24 and 25 of the Code of Criminal make a law regulating the appointment of the Public Prosecutor or Additional A 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 B 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 in C constitutional scheme and does not hold constitutional office.

pp. 124–125, margin A

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. D Appeal dismissed.

p. 125