IMPORTANT POINT
State cannot appoint more than one Advocate General.

Headnote:Constitution of India-Articles 162 and 165-Authority of a State to appoint Additional Advocate General-Writ questioning appointment of two Additional Advocate Generals by the Government of State on plea that appoint of Advocate General more than one was not contemplated by Article 165-High Court negatived said contention-Appeal-State cannot appoint more than one Advocate General-Appointment of Additional Advocate General, however, when such person is not authorised to perform any constitutional or statutory functions, must be held made by State in exercise of its executive power and not in exercise of its Constitutional power-Impugned Government order was not needed to be set aside.
       Held : 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. (Paras 9 and 10)
       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. (Para 18)

JUDGMENT

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.

2. 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.

3. 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.

4. 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].

5. 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".

6. 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.

7. 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 furt