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CASE NO.: Appeal (civil)  4 of 2004

PETITIONER: M.T. Khan & Ors.                                         

RESPONDENT: Government of Andhra Pradesh & Ors.              

DATE OF JUDGMENT: 05/01/2004

BENCH: CJI      S.B. Sinha)

JUDGMENT: J U D G M E N T

[Arising out of SLP (Civil) No.14098 of 1998]

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.   

       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.  

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.       

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].   

       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

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the context otherwise requires".

       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.   

       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 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.  

Article 165 of the Constitution of India reads thus :

"165.  Advocate-General for the State - (1)  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.

       (2) It shall be the duty of the Advocate  General to give advice to the Government  of  the State 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 this Constitution or any other  law for the time being in force.

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

       A bare reading of the said provision clearly go to show that  power of the Governor of the State in this behalf is to appoint a  person who is qualified to be appointed a Judge of  a High Court.   Similar expressions have been used by the Constitution-makers for

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the purpose of appointment of a holders of constitutional posts  including the Attorney General of India, Comptroller and Auditor  General of India, the Chief Justice and Judges of the High Courts  and Supreme Court.  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.

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

       It is a well-settled principle of law that the provisions of  the Constitution shall be construed having regard to the  expressions used therein.  The question of interpretation of a  constitution would arise only in the event the expressions  contained therein are vague, indefinite and ambiguous as well  capable of being given more than one meaning.  Literal  interpretation of the Constitution must be resorted to.  If by  applying the golden rule of literal interpretation, no difficulty  arises in giving effect to the constitutional scheme, the question  of application of the principles of interpretation of a statute  would not arise only.           In Gurudevdatta  Vksss  Maryadit and Others vs. State of  Maharashtra and Others [(2001) 4 SCC 534] , this Court held :

        "Further we wish to clarify that it is  a cardinal principle of interpretation of  statute that the words of a statute must be  understood in their natural, ordinary or  popular sense and construed according to  their grammatical meaning, unless such  construction leads to some absurdity or  unless there is something in the context or  in the object of the statute to suggest to

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the contrary. The golden rule is that the  words of a statute must prima facie be given  their ordinary meaning. It is yet another  rule of construction that when the words of  the statute are clear, plain and  unambiguous, then the courts are bound to  give effect to that meaning, irrespective of  the consequences. It is said that the words  themselves best declare the intention of the  law-giver. The courts have adhered to the  principle that efforts should be made to  give meaning to each and every word used by  the legislature and it is not a sound  principle of construction to brush aside  words in a statute as being inapposite  surpluses, if they can have a proper  application in circumstances conceivable  within the contemplation of the statute..."           In Balram Kumawat vs. Union of India and Others [(2003) 7 SCC  628], this Court held :

"The Courts will therefore reject that  construction which will defeat the plain  intention of the Legislature even though  there may be some inexactitude in the  language used. [See Salmon vs. Duncombe  [(1886) 11 AC 627 at 634].  Reducing the  legislation futility shall be avoided and in  a case where the intention of the  Legislature cannot be given effect to, the  Courts would accept the bolder construction  for the purpose of bringing about an  effective result.  The Courts, when rule of  purposive construction is gaining momentum,  should be very reluctant to hold that the  Parliament has achieved nothing by the  language it used when it is tolerably plain  what it seeks to achieve. (See BBC  Enterprises Vs. Hi-Tech Xtravision Ltd.,  (1990) 2 All ER 118 at 122-3)"

       We are, however, unable to agree with the submission of Mr. Har  Dev Singh to the effect that the appointments of Additional Advocate  Generals cannot be traced to the source of the State’s power under  Article 162 of the Constitution of India.  It is now well-settled  principles of law that non-mentioning or wrong mentioning of a  provision of law does not invalidate an order in the event it is  found that a power therefor exists.

       In Union of India vs. Khazan Singh [AIR 1992 SC 1535], this  Court held :

"...The Appellate Authority did not mention  in its order as to under which sub-rule of  Rule 25(1) the appeal was being disposed of.   The tribunal while noticing Rule 25(1)(e) of  the rules and conceding that the Appellate  Authority could remand the case to the  disciplinary authority for further inquiry  under the said sub-rule, grossly erred in  setting aside the order on the concession of  the learned counsel to the effect that the

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Appellate Authority had passed the order  under Rule 25(1)(d) of the Rules..."   

       In State of Karnataka vs. Krishnaji Srinivas Kulkarni and  Others [(1994) 2 SCC 558], this Court held :

"...Quotation of a wrong provision does not  take away the jurisdiction of the  authorities to inquire under Section 79-B(3)  of the Act..."

       The matter relating to the appointment of a legal  practitioner by a Government may be subject-matter of a  legislation.  The State by amending the provisions of Sections 24  and 25  of the Code of Criminal Procedure may make a law regulating  the appointment of the Public Prosecutor or Additional 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 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.  

       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. L.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T... ....T.......T.......T.......T.......T.......T.......T....R. Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited#Collector of Centra l Excise, Chandigarh#2003-11-25#25622#4051#P. VENKATARAMA REDDI### Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey and Ors.#State of Bihar#2003- 11-25#25623#104-106#DORAISWAMY RAJU### Appeal (civil)#Appeal (civil)  10906 of 1996#1996#Shanti Kumar Panda#Shakutala Devi#2003-11- 03#25624#10906#R.C. LAHOTI### Appeal (civil)#Appeal (civil)  11483 of 1996#1996#Amrendra Pratap Singh#Tej Bahadur Prajapat i & Ors.#2003-11-21#25625#11483#R.C. LAHOTI### Appeal (civil)#Appeal (civil)  9130 of 2003#2003#Ameer Trading Corporation Ltd.#Shapoorji Da ta Processing Ltd.#2003-11-18#25626#9130#CJI### Appeal (civil)#Appeal (civil)  14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.R s., etc. etc.#State of Uttar Pradesh#2003-11-28#25627#14178-14184#Doraiswamy Raju### Appeal (crl.)#Appeal (crl.)  1968 of 1996#1996#Goa Plast (P) Ltd.#Chico Ursula D’Souza#2003- 11-20#25628#1968#B.P. Singh### Writ Petition (crl.)#Writ Petition (crl.)  199 of 2003#2003#Ashok Kumar Pandey#The State of  West Bengal#2003-11-18#25629#199#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  20 of 2003#2003#Surendra Paswan#State of Jharkhand#2003-11-28#2 5630#20#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  278 of 1997#1997#Vidyadharan#State of Kerala#2003-11-14#25631#2 78#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  292 of 1997#1997#State of Madhya Pradesh.#Awadh Kishore Gupta a nd Ors.#2003-11-18#25632#292#DORAISWAMY RAJU### ###State of Punjab & Anr.#M/s Devans Modern Brewaries Ltd. & Anr.#2003-11-20#25633##CJI.### Appeal (crl.)#Appeal (crl.)  331 of 1997#1997#Shriram#State of Madhya Pradesh#2003-11-24#256 34#331#DORAISWAMY RAJU###

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Appeal (civil)#Appeal (civil)  3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P.  & Ors.#Toddy Tappers Coop. Society, Marredpally  & Ors.#2003-11-17#25635#3630-3631#CJI.### Appeal (crl.)#Appeal (crl.)  371-372 of 2003#2003#Ram Dular Rai & Ors.#State of Bihar#2003-1 1-27#25636#371-372#S.B. Sinha.### Appeal (civil)#Appeal (civil)  4075-4081 of 1998#1998#Nair Service Society#Dist. Officer, Ke rala Public Service Commission & Ors.#2003-11-17#25637#4075-4081#CJI.### Appeal (civil)#Appeal (civil)  4698-4700 of 1994#1994#State of U.P. & Ors.#Lalji Tandon (Dea d)#2003-11-03#25638#4698-4700#R.C. LAHOTI### Appeal (crl.)#Appeal (crl.)  506 of 1997#1997#State of Karnataka#Puttaraja#2003-11-27#25639# 506#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  519-521 of 2003#2003#Goura Venkata Reddy                                    Vs.#State of Andhra Pradesh#2003-11-19#25640#519-521#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  530-531 of 2003#2003#Bhargavan & Ors.                                       #State of Kerala                                                #2003-11-17#2564 1#530-531#DORAISWAMY RAJU### Appeal (civil)#Appeal (civil)  7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.                            #Arnavaz Rustom Printer & Anr.                          #2003-11-24#25642#7371#R .C. LAHOTI### Appeal (civil)#Appeal (civil)  9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad,  District, Andhra Pradesh   #Nookala Rajamallu and Ors.                             #2003-11 -21#25643#9205-07#DORAISWAMY RAJU### Transfer Petition (crl.)#Transfer Petition (crl.)  77-78 of 2003#2003#K. Anbazhagan                                              #The Superintendent of Police & ors.#2003-11-18#25644#77 -78#S.N. VARIAVA### Appeal (civil)#Appeal (civil)  7868 of 1995#1995#ITW Signode India Ltd.                                  #Collector of Central Excise                 #2003-11-19#25645#7868#CJI###