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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE KANAKARAJ
THE HONOURABLE MR. JUSTICE KANAKARAJ - Appellant
Versus
. - Respondents
Writ Petn. No. 4167 of 1994 and W.M.P. No. 9612 of 1994
Decided On : 19 April 1994
WRIT PETITION - MAINTAINABILITY - OFFICE OF ADVOCATE-GENERAL - QUALIFICATIONS - INTEGRITY - JUDICIAL REVIEW - WRIT OF QUO WARRANTO - CONSTITUTIONAL POSTS - APPOINTMENT AND REMOVAL - ADVOCATE-GENERAL'S DUTIES AND RESPONSIBILITIES - JUDICIAL ACCOUNTABILITY - PUBLIC INTEREST LITIGATION - BALANCE OF INTERESTS - SEPARATION OF POWERS - OPEN GOVERNMENT - TRANSPARENCY - INFORMATION DISCLOSURE - JUDICIAL QUIETUS - MOULDING OF RELIEF - DIRECTIONS TO GOVERNMENT - MAINTAINABILITY OF WRIT PETITION - ADDITIONAL AFFIDAVIT - TIME FOR FILING COUNTER-AFFIDAVIT.
Fact of the Case:
A writ petition was filed by an Advocate, who is also a Member of the Tamil Nadu Legislative Assembly, in the public interest, seeking a writ of mandamus to direct the first respondent, the Governor of Tamil Nadu, to remove the second respondent, the Advocate-General, from office. The petitioner alleged that the second respondent lacked integrity and had engaged in various acts of misconduct, including making derogatory remarks against the judiciary, demanding illegal gratification, and presenting a petition to the Central Government seeking the transfer of certain Judges of the High Court. The respondents filed counter-affidavits denying the allegations and asserting that the second respondent was duly appointed and qualified to hold the office of Advocate-General. The respondents also raised a preliminary objection, arguing that the writ petition was not maintainable.
Finding of the Court:
The Court held that the writ petition was maintainable. The Court noted that the office of Advocate-General is a high constitutional post and that the Advocate-General has important statutory duties and responsibilities. The Court also noted that the petitioner had made serious allegations against the second respondent, which, if true, would undermine the integrity of the office of Advocate-General and the relationship between the Bar and the Bench. The Court held that it was in the public interest to thrash out the allegations one way or the other, so that it could be decided with certainty whether there was a case for granting any relief or directions under Article 226 of the Constitution of India.
Issues: 1. Whether the writ petition was maintainable. 2. Whether the allegations made against the second respondent, if true, would undermine the integrity of the office of Advocate-General and the relationship between the Bar and the Bench. 3. Whether it was in the public interest to thrash out the allegations one way or the other.
Ratio Decidendi: 1. The Court held that the writ petition was maintainable because: (a) the office of Advocate-General is a high constitutional post with important statutory duties and responsibilities; (b) the petitioner had made serious allegations against the second respondent, which, if true, would undermine the integrity of the office of Advocate-General and the relationship between the Bar and the Bench; and (c) it was in the public interest to thrash out the allegations one way or the other. 2. The Court held that the allegations made against the second respondent, if true, would undermine the integrity of the office of Advocate-General and the relationship between the Bar and the Bench because: (a) the second respondent had made derogatory remarks against the judiciary; (b) the second respondent had demanded illegal gratification; and (c) the second respondent had presented a petition to the Central Government seeking the transfer of certain Judges of the High Court. 3. The Court held that it was in the public interest to thrash out the allegations one way or the other because: (a) the office of Advocate-General is a high constitutional post; (b) the allegations made against the second respondent were serious; and (c) it was important to maintain the integrity of the office of Advocate-General and the relationship between the Bar and the Bench.
Final Decision: The Court allowed the writ petition and directed the respondents to file an additional counter-affidavit meeting the new points raised in the petitioner's additional affidavit. The Court also posted the writ petition for final disposal on a later date.
At the outset I make it clear that I am dealing with only the preliminary objection, orally raised by the respondents regarding the maintainability of the writ petition. I do not therefore propose to go into the merits of the case or the correctness of the allegations made in the affidavit of the petitioner or whether those allegations, even if proved, would entitle the petitioner to have the relief sought for in this writ petition. Since the matter has been argued elaborately, it is but proper, that I should set out the necessary pleadings and sequence of events which led to the raising of the preliminary objection, orally.
2. The writ petition was filed on 9-3-1994 and the Rule Nisi was issued on 11-3-1994. In W.M.P. No. 6669 of 1994 seeking an injunction restraining the second respondent from discharging his duties, notice was ordered on 11-3-1994. The prayer in the writ petition is for the issue of a writ of mandamus to direct the first respondent to remove the second respondent from the office of the AdvocateGeneral for the State of Tamil Nadu. The writ petition has been filed by an Advocate enrolled in the year 1959 and who is today a Member of the Tamil Nadu Legislative Assembly. He also claims to be one of the General Secretaries of the Tamil Nadu Congress Committee. He professes to file the writ petition in the public interest. The second respondent was appointed as the AdvocateGeneral for the State of Tamil Nadu and he assumed office on 3-7-1991. It is not disputed that he was appointed by the Government in power, ruled by the A.I.A.D.M.K. party. The affidavit proceeds to say that the office of the Advocate-General is a very important public office and he has vide powers both under the Constitution of India as well as several enactments like the Civil Procedure Code, Contempt of Courts Act, and the Advocates Act. He is considered as the leader of the Bar and is given the utmost respect by the High Court. The Advocate General is appointed under Art. 165 of the Constitution of India by the Governor of the State. He must be a person qualified to be appointed as a Judge of the High Court. His duties are to advice the Government upon such legal matters and perform such duties of a legal character as may from time to time be referred to or assigned to him by the Governor. He holds office during the pleasure of the Governor. Consequently, the petitioner says that only a person with good antecedent and background should be appointed as an Advocate General. In the instant case, the petitioner refers to three circumstances as vitiating the appointment of the second respondent as Advocate General. (1) In Contempt Application No. 69 of 1994 pending on the file of this Court, affidavits have been filed implicating the second respondent in the matter of printing and publishing wall-posters denigrating the judiciary. (2) On 2-11-1981, the second respondent was appointed as a Legal Adviser of the Tamil Nadu Industrial Investment Corporation Limited (hereinafter called (TIIC), a Government of Tamil Nadu undertaking. A written complaint was made by one Mr. Nalla Gounder, complaining about the second respondent's conduct in demanding a sum of Rs. 10, 000/-for offering a legal opinion on the title of the property offered by the said Nalla Gounder as security for a loan sought for from the TIIC. The TIIC sought the opinion of the Government and the Government by a letter dated 31-1-1985 instructed the TIIC to remove the second respondent from the panel of the legal Advisers. (3) There were certain proceedings against the second respondent before the Bar Council of Tamil Nadu.
3. Of the three instances, the first and the third instances were admittedly, after the appointment of the second respondent. According to the petitioner, the appointment of the second respondent as Advocate-General without looking into his antecedents and background especially, with particular reference to the removal, as a panel advocate from the TIIC, v
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