The Advocate General's constitutional duties and specific orders issued by the Governor override the general taboo created by the Rules.

The Advocate General for the State is appointed by the Governor in exercise of the powers conferred on him under Clause (1) of Art. 165 of the Constitution. Clause (2) of Art. 165 provides that it shall be the duty of the Advocate General to give advice to the Government 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 the Constitution or any other law for the time being in force.

2. In pursuance of the above power under Cls. (2) and (3) of Art. 165, the Government of Kerala has made "the Rules" regarding the duties, remuneration etc. of the Advocate General, contained in the Notification, No. LD(A)1-3006/56/Law, dt. 1st November 1956. Clause 18 of the Rules stipulates that the Advocate General is bound to perform such other duties of a legal character as may, from time to time, be referred or assigned to him by the Governor.

3. Pursuant to the power conferred by Clause 18 (referred to above) of the Rules, the Governor has directed the Advocate General Sri. P. V. Ayyappan to "appear and defend C.C. No. 18/85 on the file of the Chief Judicial Magistrate, Trivandrum and all further and connected proceedings arising therefrom in other courts, on behalf of Sri K. Karunakaran, the Chief Minister of Kerala" (vide G.O. (MS) 26/85/Law dt. 11-2-1985).

4. In view of the above Government Order directing the Advocate General to defend Sri Karunakaran in C.C. No. 18/85 before the Chief Judicial Magistrate, Trivandrum, and connected proceedings arising there from in other courts, it cannot be said that the Advocate General was not justified in filing M.C. 137/85 before this Court on behalf of Sri. Karunakaran.

5. However, a question would arise whether there is any inhibition in the Advocate General defending the case on behalf of Sri. Karunakaran. According to the petitioner the Advocate General, in view of the provisions contained in the Rules, should be held to have acted illegally and with mala fide intention in prosecuting M.C. 137/85, on behalf of Sri. Karunakaran and as such he is entitled to the reliefs prayed for in the Original Petition.

6. An investigation into these aspects of the matter has therefore become necessary. The petitioner in this connection has referred to Cls. 5, 6 and 19 in Part I and Cls. 1, 5 and 6 in Part III of the Rules. They read:

Part I - "The duties of the Advocate General are :

Clause 5. To arrange to represent Government in the High Court in all proceedings, civil or criminal, original or appellate in which Government is a party.

Clause 6. Himself to represent Government in the High Court in proceedings of importance, civil or criminal, original or appellate, in which Government is a party, when specially directed.

Clause 19. To discharge the functions conferred on him by or under the Constitution or any other law for the time being in force.

Part III.

Clause 1. The Advocate General is debarred from accepting a brief from any private person in any criminal case in any court.

Clause 5. He shall not give legal advice to private persons on matters in which the interests of those persons are adverse to Government.

and Clause 6. He shall not give advice in any case to private persons if, in his opinion, he is likely to be called upon to advise Government in the same case."

7. Placing reliance on these clauses, the petitioner submitted that inasmuch as these provisions inhibit the Advocate General in defending/prosecuting criminal cases in the High Court on behalf of an accused person, the Advocate General should be declared to have acted illegally in filing M.C. 137/85 in this Court on behalf of Sri Karunakaran. He further submitted that the Advocate General acted mala fide in not impleading the State as a party to the above M.C. Not only that, the Advocate General by the said intentional act has effectively circumvented the above provisi