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Functions of Advocate General Can be Transferred to Additional Advocate General: Allahabad HC Upholds Decision of the State Government [READ ORDER]

By VANDANA KOTHARI      07 September, 2020 04:21 PM      0 Comments
Functions of Advocate General Can be Transferred to Additional Advocate General: Allahabad HC Upholds Decision of the State Government [READ ORDER]

A circular was issued on 26.06.2020 by the State government in which it was stated that in the absence of learned Advocate General, the urgent and routine work at Allahabad shall be performed by Sri Manish Goyal, Additional Advocate General, whereas at Lucknow, the same will be performed by Sri Vinod Kumar Shahi, Additional Advocate General.

Challenging Para 3 of the Circular issued by the State Government, a practicing lawyer at Allahabad High Court, Ashok Pande said that “Advocate General is an important functionary of the Government of Uttar Pradesh and constitutional authority, therefore, para-3 of the impugned Circular is unconstitutional as it appoints two Additional Advocate Generals to perform routine and urgent work of the office of the Advocate General in case he is not available at Allahabad and at Lucknow.”

He filed a PIL “under Article 226 of the Indian Constitution” and further submits “In case the Advocate General, by reason of illness or otherwise, is not available, the State Government shall appoint new incumbent as Advocate General to perform all the duties of his office. According to him, in absence of the Advocate General, the work of the Advocate General cannot be entrusted to the Additional Advocate General.”

To support his contention the petitioner relied on 2 judgments of the Kerala High Court in M.K. Padmanabhan vs. State of Kerala and M.T. Khan vs. State of Andhra Pradesh.

He stated that no other person can perform the functions of the office of the Advocate General. He can perform it himself only. 

The court on his contention said that “The judgment of Division Bench of the Kerala High Court in M.K. Padmanabhan v. State of Kerala and Anr. has been followed by a Division Bench of Gauhati High Court in Bhadreswar Tan Ti vs. S.H. Choudhury and Anr. Thus another contention that the State Government could not appoint an Additional Advocate General is also meritless. The Governor of a State has, under the Constitution, to appoint an Advocate General. That power includes the power to appoint an Additional Advocate General as well. “Article 367 of the Constitution” provides that unless the context otherwise requires, the General clauses Act, 1897 shall apply for the interpretation of the Constitution. 

The PIL got dismissed by the division bench comprising of Justice Pankaj Kumar Jaiswal and Dinesh Kumar Singh. They said that “para-3 of the impugned Circular is an administrative instruction in order to proper/smooth assistance of the Court on behalf of the State.”

“This Para shows that it is only an administrative instruction by way of impugned Circular in order to function the urgent and routine work of the office of Advocate General at Allahabad as well as at Lucknow in absence of the Advocate General. It is not the instruction that the power as enshrined by the Advocate General under the Constitution shall be performed by the Additional Advocate General,” said the court.



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