HC upholds transfer of functions of Advocate General in his absence to Addl. Advocate General

 

The Allahabad High Court has dismissed a Public Interest Litigation challenging the constitutional validity of the instruction of State Government which provided that: in absence of learned Advocate General, the urgent and routine work at Allahabad and Lucknow shall be performed by Additional Advocate General.

Ashok Pande, a practicing lawyer at Allahabad High Court, approached the High Court under Article 226 of the Indian Constitution against the appointment of Additional Advocate General to deal with the urgent and routine work in the absence of Advocate general.

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The petitioner contended before the Court that: "All the powers vested with the Advocate General for the State either by the Constitution or by the different enactments are to be performed only and only by the Advocate General either he is at Lucknow or Prayagraj (Allahabad) or at any other place in the country. 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, work of the Advocate General cannot be entrusted to the Additional Advocate General.”

In support of his case, the petitioner: placed reliance on the judgment of the Kerala High Court in M.K. Padmanabhan Vs. State of Kerala 1978 Lab. I.C. 1336 and M.T. Khan Vs. State of Andhra Pradesh and Others and submitted that the functions of the office of Advocate General can be discharged only by the Advocate General and none else.

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The Division Bench comprising of Justice Pankaj Kumar Jiaswal and Dinesh Kumar Singh while dismissing the present petition said that the decision of the State government to appoint two Additional Advocate General is a necessary administrative instruction in order to ensure proper and smooth assistance of the State Counsel in absence of Advocate General to the Court.

It is clarified by the impugned circular that the power of the Advocate General has been assigned to the Additional Advocate General for performing his functions as a whole as provided under the Constitution.

“It is only an administrative instructions 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” stated the Court.

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