In this petition which is filed in public interest, the reliefs sought are as follows:-
"a) Issue a writ of Certiorari to quash the Order Dated 29/07/2014 issued by State Government by which Sri V.C. Mishra has been removed from the office of Advocate General without asking him to function as Advocate General till the new incumbent is appointed and to direct the government to pass the fresh order asking Sri V.C. Mishra to function as Advocate General till the new Advocate General is appointed, which is contained as Annexure No.1.
b) Issue a writ of mandamus thereby directing the respondents concerned to immediately appoint the new Advocate General for the State.
c) Issue a writ of mandamus thereby directing the respondents to take appropriate penal action against the Chief Secretary Sri Alok Ranjan and all others concerned officers for creating constitutional crisis in the State."
On 29 July 2014, an order was issued by the State Government through the Chief Secretary recording that the Governor had removed the then Advocate General. The petitioner has averred that prior thereto, the incumbent Advocate General "was removed" without appointing a successor.
In a writ petition [Writ Petition No.1117 (S/B) of 2013] before this Court, the Court was informed that the file pertaining to the petitioner had been sent for the opinion of the Advocate General but since the then Advocate General had demitted office on 18 October 2013 and no successor had been appointed, the opinion was awaited. The Court observed that a constitutional crisis may arise without the appointment of an Advocate General and, accordingly, issued a notice to the Chief Secretary. The Chief Secretary filed his affidavit on 25 November 2013 stating that the then Advocate General had resigned on 18 October 2013 and that His Excellency, the Governor while accepting the resignation, had requested the Advocate General to continue till the new successor was appointed. Hence, it was stated that the Advocate General was continuing under the interim arrangement.
The present proceeding emanates from the removal of the Advocate General on 29 July 2014. The submission of the petitioner is that the State Government, while initiating steps for removal, ought to have simultaneously ensured the appointment of a successor in office. The State Government having not done so, the relief which has been sought is to quash the order of removal dated 29 July 2014 on the ground that the earlier Advocate General has not been called upon to function as Advocate General till the new appointment is made. A direction is also sought to the Government to pass a fresh order requesting the earlier Advocate General to function as such till a successor is appointed. The petitioner also seeks a mandamus for the appointment of an Advocate General. Finally, the petition seeks penal action against the Chief Secretary and others for "creating constitutional crisis in the State". Learned counsel for the petitioner submits that this Court is not helpless in the matter and should recommend the exercise of powers under Article 356 of the Constitution.
Under Article 165 (1) of the Constitution, the Governor of each State shall appoint a person who is qualified to be appointed as a Judge of a High Court to be Advocate General for the State. Under Clause (2) of Article 165, it is 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 the Constitution or any other law for the time being in force. The Advocate General holds office under Clause (3) of Article 165 during the pleasure of the Governor.
The Advocate General occupies an important constitutional post. The Supreme Court in M.T. Khan and others Vs. Govt. of A.P. and others1, observed as follows:-
"10... 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 the Code of Criminal Procedure, Section 92 of the Code of Civil Procedure and Section 23 of the Advocates Act. Each of such functions performed 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."
As a Law Officer, the Advocate General has to tender advice to the Government of the State upon legal matters besides performing other duties of a legal character as are referred to or assigned to him. The Advocate General also has to discharge the functions cast upon him by the Constitution or under any other law. This will include duties which are cast under the law of contempt under the Contempt of Courts Act, 1971 and other statutory functions under the Code of Criminal Procedure, 1973, the Code of Civil Procedure, 1908 and the Advocates Act, 1961. Obviously, it requires no stretch of reasoning to postulate that in a constitutional post of this nature, there should be no vacuum. A positive obligation is cast upon the State by Article 165 of the Constitution which must be discharged by making an appointment at the earliest possible date when a vacancy in the office arises.
When the petition came up for hearing on 19 August 2014, this Court, noted that the State of Uttar Pradesh does not have an Advocate General following the termination of the appointment of the Advocate General on 29 July 2014. The Additional Advocate General, on her request, was granted time until today to enable the State Government to take a considered view in the matter. The learned Additional Advocate General has informed the Court on taking instructions that on or before 4 September 2014, a notification for the appointment of a new Advocate General would be issued. In the meantime, one of the Additional Advocates General has been administratively assigned duties of the Advocate General. It is fairly stated that this is only an administrative arrangement and not an order which has been passed under Article 165 of the Constitution by the Governor.
Though, under Article 162 of the Constitution, the State can appoint a lawyer of its choice and designate such a person in any manner as it deems fit and proper, appointment of an Advocate General can only be under the provisions of Article 165 of the Constitution. No other person, save and except an Advocate General appointed under Article 165, can discharge the constitutional and statutory functions of that post. The Supreme Court, while considering the power of the State to appoint an Additional Advocate General, observed in M.T. Khan (supra) that while such a power is traceable to Article 162, an Additional Advocate General is not the holder of a constitutional office and cannot discharge the constitutional and statutory functions of an Advocate General. In that context, the Supreme Court observed as follows :-
"19... 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 authorized 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 the constitutional scheme and does not hold constitutional office."
In view of the clear position in law, an administrative arrangement of the nature made by the State, does not constitute an appointment of an Advocate General under Article 165 nor for that matter, can such a person appointed in exercise of the power under Article 162 of the Constitution discharge the constitutional and statutory functions of an Advocate General. The constitutional and statutory functions which have to be performed by the Advocate General can be performed by a person who is appointed as an Advocate General under Article 165 of the Constitution.
We, accordingly, record the statement which has been made before the Court that the State shall notify the appointment of an Advocate General by 4 September 2014.
We find no merit in the submission of the petitioner that this Court should set aside the order dated 29 July 2014 on the ground that the earlier Advocate General was not requested to continue till a new appointment is made. The Advocate General holds office during the pleasure of the Governor. An order of removal is, in essence, a withdrawal of pleasure. Where an Advocate General resigns from the post, it may be customary for the Government to request the Advocate General to continue until a fresh appointment is made. However, even in such a case, there is no such mandate in Article 165 of the Constitution. This Court cannot, by issuing a mandamus of the nature sought, compel the Government to appoint a particular individual, even for a short period of time to the office of the Advocate General under Article 165 of the Constitution.
Consequently, we find no reason to entertain the request for setting aside the order dated 29 July 2014 on that ground, or for that matter, for issuing any direction for the continuance of the earlier holder of the office.
We find no reason or justification to entertain the request for initiating penal action against the Chief Secretary or against any other concerned officer.
The submission that the Court should make an observation regarding the exercise of powers under Article 356 of the Constitution is only to be stated to be rejected. We issue no such direction of the kind.
In the circumstances, and taking on record the statement which has been made before the Court, in the terms noted earlier, we dispose of the petition. There shall be no order as to costs.
Order Date :- 21.8.2014 VMA (Dr. D.Y. Chandrachud, C.J.) (Dr. D.K. Arora, J.)