The court emphasized the limitations on its inquiry into the decision of the Cabinet and the mode of aid and advice tendered to the Governor, as per Art.163(3) and Art.74.

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 tinder 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.

2.1 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.

4. The Supreme Court in a number of decisions while considering the width of power exercised by the President of India held mat the President is the Head of the State and only a formal executive and in all functions vested in him he acts on the advice of the Ministers and the President is a symbol used to formulate the decisions arrived at by the Ministers and the Cabinet. The effective executive power lies with the Prime Minister and the Ministers should constitute the real executive carrying on the entire burden of conducting the administration of the Union (See the decision reported in R. C. Cooper v. India A.I.R 1970 SC 564).

5. Our Constitution had adopted the English system of Parliamentary executive that the President was a constitutional head of the executive and the real power lies with the Ministers of the Cabinet. Conventions operating in England governing the relationship between the Crown and the Ministers are precedent to the Indian Constitution as well. Art.164 of the Constitution says that the Chief Minister shall be appointed by the Governor and other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of Governor and Art.166 states that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. The duties of Chief Minister in respect of furnishing of information to Governor are enumerated in Art.167 of the Constitution. They are as follows:

"It shall be the duty of the Chief Minister of each State -

(a) to communicate to the Governor of the State all decision of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;

(b) to furnish such information r