Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 188 (MP)

State of M. P. v. Koshy Mathew

2005-02-08

DIPAK MISRA, U.C.MAHESHWARI

body2005
ORDER Dipak Misra, J. 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the State of M.P. and its functionaries have called in question the defensibility of the order dated 10-11-2000 contained in Annexure P-10 passed by the M.P. Administrative Tribunal, Jabalpur (in short 'the Tribunal') in O.A. No. 5674/2000 and prayed for issue of a writ of certiorari for quashment of the same and further to declare that the transfer of respondents 1 to 5 to newly constituted State of Chhattisgarh is legal, justified and impregnable. 2. The facts which are essential to be adumbrated are that the respondents 1 to 9, the employees of the office of the Advocate General assailed the decision provisionally allotting them to the State of Chhattisgarh approached the Tribunal under section 19 of the Administrative Tribunals Act, 1985. It was contended before the Tribunal that out of total strength of sixteen employees eleven had been transferred which was much greater than the ratio prescribed for the transfer of the employees to the new State of Chhattisgarh. It was urged that the Advocate General is a Constitutional functionary who is required to discharge his duties independently but without consulting him the employees have been proposed to be allotted to the new State. It was also putforth that certain officers have been allotted to the State of Chhattisgarh though there was no justification for the same. 3. The Tribunal adverted to the aforesaid contentions and came to hold that the office of the Advocate General is a constitutional office and he is required to discharge his duties and he can only discharge his duty with the help of sufficient staff and if bulk of staff is sent out it would be difficult to him to discharge his duties. The Tribunal further expressed the view that though the staff working with the Advocate General has been appointed by the Government but for all practical purposes such staff have to be treated under his full control and authority. Being of this view the Tribunal concluded that the consent and approval of the Advocate General was necessary and that had not been taken place in the case at hand. Being of this view the Tribunal concluded that the consent and approval of the Advocate General was necessary and that had not been taken place in the case at hand. Quite apart from the above the Tribunal also took the view that there is one post of Administrative Officer and one Private Secretary and both being abolished vide notification No. F-1-43-2000-4(2) I-SCR dated 31-10-2000 and incumbents have been transferred to the State of Chhattisgarh who have been retained in the State of Madhya Pradesh. The Tribunal adverted the allegation regarding other posts and came to hold that the Government has acted in an arbitrary manner in transferring eleven persons out of sixteen persons without consent of the Advocate General. The Tribunal directed that the allocation of the staff of the Advocate General should be reconsidered by the authorities keeping in view the exalted office held by the Advocate General after taking his consent and concurrence and till then employees were allowed to continue. 4. Assailing the aforesaid order it is contended in the writ petition that the entire establishment of the Office of the Advocate General at Jabalpur and that in Gwalior and Indore are part of the office of Department of Law and Legislative Affairs and there is no separate set-up or otherwise establishment for the office of the Advocate General. These are the employees of various categories working in Class-II though they are working in the office of the Advocate General fundamentally they are ministerial staff of the State Government and at no stage relating to appointment, transfer or termination there is provision for obtaining any consent or concurrence of the Advocate General. It is putforth that the decision is taken by the competent authority of the Department of Law and Legislative Affairs. Emphasis has been laid on the provisions of M.P. Reorganization Act, 2000 (for brevity 'the Act') to highlight that there is no provision in the said enactment conferring any special role to the employees in the office of the Advocate General. Justification has been given how the allocation had taken place and role of Central Government in the matter of allocation. It has also been putforth that many an employee of the office of the Advocate General, Jabalpur and that in Gwalior and Indore has joined in the new State of Chhattisgarh. Justification has been given how the allocation had taken place and role of Central Government in the matter of allocation. It has also been putforth that many an employee of the office of the Advocate General, Jabalpur and that in Gwalior and Indore has joined in the new State of Chhattisgarh. It is also contended that the Tribunal has misconceived the entire legal position in respect of the office of the Advocate General and issued a direction which is totally unsound. 5. A counter affidavit has been filed by the respondents 1 to 9 contending, inter alia, that the office of the Advocate General is a high office and he has a role in the justice dispensation system and unless he has separate and adequate staff there would be immense difficulty in practical functioning and hence, the Tribunal rightly held that the concurrence and consent of the Advocate General was imperative before any of his staff was allotted to the new State of Chhattisgarh. Various other aspects have been shown how the employees were required to be retained in the State of M. P. 6-7. We have heard Mr. V. S. Shroti, learned senior counsel with Mr. Gautam Prasad for the petitioners and Mr. Rajendra Tiwari, learned senior counsel with Mr. T. K. Khadkar for the respondents 1 to 9. 8. Assailing the order passed by the Tribunal it is contended by Mr. Shroti that in the scheme of the Act there is no provision which requires consultation with the Advocate General before his staff are allocated and hence, the finding of the Tribunal in that regard is absolutely unpresentable. It is propounded by him that the role assigned to the Advocate General by the Tribunal is not within the framework of the Constitution though the Advocate General holds a high office. The learned senior counsel has further submitted that what the Tribunal has stated in a way amounts to different kind of anatomy of the office of the Advocate General in relation to staff which is neither provided in the Constitution nor under the Act and, therefore, the order passed by the Tribunal is sensitively susceptible. 9. Mr. Rajendra Tiwari, learned senior counsel appearing for the respondents 1 to 9 controverted the aforesaid submissions submitted that the provisions in the Constitution relating to Advocate General should not be narrowly interpreted as the same would not subserve the constitutional purpose. 9. Mr. Rajendra Tiwari, learned senior counsel appearing for the respondents 1 to 9 controverted the aforesaid submissions submitted that the provisions in the Constitution relating to Advocate General should not be narrowly interpreted as the same would not subserve the constitutional purpose. It is contended by him that the Tribunal has rightly held that the office of the Advocate General stands on a different footing and his staff cannot be disturbed without his consent or concurrence. The learned senior counsel has further argued that assuming that in the matter of allotment the Central Government has a role to play, this Court has already issued certain directions in respect of allocation and the petitioners are entitled to the said benefits. 10. To appreciate the rivalised submissions raised at the Bar we think it condign to refer to Article 165 of the Constitution of India which reads as under : Art.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. 11. The Apex Court in the case of Joginder Singh Wasu vs. State of Punjab, (1994) 1 SCC 184 while dealing with the office of the Advocate General expressed the view as under : 12. The office of an Advocate General is an exalted one. He is the supreme law officer of the State. 15. The functions of the Advocate-General are mentioned in clause (2). The office of an Advocate General is an exalted one. He is the supreme law officer of the State. 15. The functions of the Advocate-General are mentioned in clause (2). They are as follows : (i) to give advice to the Government of a State upon such legal matters as may from time to time be referred to him by the Governor; (ii) to perform such other duties of a legal character as may from time to time be assigned to him by the Governor; (iii) to discharge the functions conferred on him by or under this Constitution; and (iv) to discharge the functions conferred on him by or under any other law for the time being in force. 16. It will be seen that the functions of the Advocate-General include the performance of duties of a legal character which may from time to time be referred to or assigned to him by the Governor. 12. Thereafter their Lordships expressed thus: ..Once, as observed above, the relationship between the parties, namely, the Advocate-General and the State is that of an advocate and a client, a client may propose the fees. It is open to the advocate to stipulate a higher fee. If that is not agreed to he cannot compel the client that he must be entrusted with the brief for him to conduct on the fee stipulated by him. May be, the State Government, for reasons best known to itself, is not agreeable to the old fee structure. The position of the State vis-avis the Advocate General may be described in the words of William Shakespeare : Whose worth is unknown, Although his height be taken. 21. But the Advocate-General cannot say that he shall be continued on the same terms of appointment. He no doubt asked the State Government as W. S. Gilbert said : Take heart of grace, Thy steps retrace. 22. But once that is not forthcoming he will have to bid goodbye as Alfred De Musset said : Malgre Moi me tourmente : I can't help it, the idea torments me. 13. In this regard we may usefully refer to the decision rendered in the case of M.T. Khan and others vs. Govt. of A.P. and others, (2004) 2 SCC 267 which is as under: 10. 13. In this regard we may usefully refer to the decision rendered in the case of M.T. Khan and others vs. Govt. of A.P. and others, (2004) 2 SCC 267 which is as under: 10. A bare reading of the said provision clearly goes 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 the purpose of appointment of holders of constitutional posts including the Attorney General for India, Comptroller and Auditor General of India, the Chief Justice and Judges of the High Courts and the 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 therefore 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 be totally at a loss as to which opinion/decision is 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 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 that the State intended to endow such responsibility upon him. 14. 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 that the State intended to endow such responsibility upon him. 14. On a perusal of the provision contained under Article 165 of the Constitution and keeping in view the pronouncement of the Apex Court there can be no scintilla of doubt that the office of the Advocate General is an office of great significance and of immense public import as he is required to perform the duties of high public importance but it is difficult to infer from the said provision that employees working under him or attached are to be treated as employees of the Advocate General. The office of an Advocate General enjoys an exalted position in the scheme of the Constitution but in the absence of any kind of specific provision in the Constitution relating to staff of the Advocate General to infer that prior concurrence or consent for transfer of the employees is necessary would not be appropriate. It would not be out of place to state here that wherever the Constitution has required the process of consultation it has used such language as in Articles 124, 217 and 320. Article 165 of the Constitution does not envisage any kind of consultation or concurrence. In the absence of the same we are inclined to hold that whatever has been read into the said Article by the Tribunal is absolutely fallacious and does not commend acceptance. 15. Presently we shall proceed to scan the anatomy of the Act whether the Act ascribes any kind of role to the Advocate General in such matter. Section 3 of the Act deals with the formation of the new State of Chhattisgarh. Sections 67 and 68 of the Act relate to service in the State of M.P. and State of Chhattisgarh. The said provisions read as under : 67. Section 3 of the Act deals with the formation of the new State of Chhattisgarh. Sections 67 and 68 of the Act relate to service in the State of M.P. and State of Chhattisgarh. The said provisions read as under : 67. Provisions relating to All India Services.- (1) In this section, the expression "State Cadre",- (a) in relation to the Indian Administrative Service, has the meaning assigned to it in the Indian Administrative Service (Cadre) Rules, 1954; (b) in relation to the Indian Police Service, has the meaning assigned to it in the Indian Police Service (Cadre) Rules, 1954; (c) in relation to the Indian Forest Service, has the meaning assigned to it in the Indian Forest Service (Cadre) Rules, 1966 (2) In place of the cadres of the Indian Administrative Service, Indian Police Service and Indian Forest Service for the existing State of Madhya Pradesh, there shall, on any from the appointed day, be two separate cadres, one for the State of Madhya Pradesh and the other for the State of Chhattisgarh in respect of each of these services. (3) The initial strength and composition of the State Cadres referred to in sub-section (2) shall be such as the Central Government may, by order, determine before the appointed day. (4) The members of each of the said service borne on the Madhya Pradesh cadre thereof immediately before the appointed day shall be allocated to the State cadres of the same service constituted under subsection (2) in such manner and with effect from such date or dates as the Central Government may, by order, specify. (5) Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All India Service Act, 1951 (61 of 1951) or the rules made thereunder. 68. (5) Nothing in this section shall be deemed to affect the operation, on or after the appointed day, of the All India Service Act, 1951 (61 of 1951) or the rules made thereunder. 68. Provisions relating to service in Madhya Pradesh and Chhattisgarh.- (1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Madhya Pradesh shall on and from that day provisionally continue to serve in connection with the affairs of the State of Madhya Pradesh unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Chhattisgarh : Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in sub-section (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of subsection (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Governments concerned or in default of such agreement as may be determined by the Central Government. 16. Section 71 which is relevant for the present purpose reads as under : 71. Advisory Committees.- The Central Government may, by order establish one or more Advisory Committees for the purpose of assisting it in regard to - (a) the discharge of any of its functions under this Part; and (b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this Part and the proper consideration of any representations made by such persons. 17. On a scrutiny of the anatomy of the aforesaid provisions it is absolutely clear that the office of the Advocate General has not been given any kind of extra leverage or priority as far as staff of the Advocate General is concerned. 17. On a scrutiny of the anatomy of the aforesaid provisions it is absolutely clear that the office of the Advocate General has not been given any kind of extra leverage or priority as far as staff of the Advocate General is concerned. Thus, in the absence of any kind of provision in the said enactment it is difficult to infer that any kind of power has been conferred on the Advocate General. The concept of autonomy is not there and to read anything into the statute would cause violence to the scheme of the enactment. As we do not perceive any power in the said enactment, we are unable to agree with the view expressed by the Tribunal. 17A. Ordinarily after so stating we would have quashed the order of the Tribunal but on a perusal of the order of the Tribunal it is perceptible that the Tribunal has adverted to the facet of allocation and many other aspects. Deliberation on the same is not necessary as in the matter of allocation this Court issued the guidelines in the case of Brijendra Kumar Soni, 2004(1) MPHT 201 which have been affirmed by the Division Bench of this Court. Ergo, we only state that the guidelines given in the aforesaid case shall be made applicable to the respondents 1 to 9. 18. Ex consequenti, the order passed by the Tribunal is quashed. However it is directed that the guidelines issued in the case of Brijendra Kumar Soni (supra) that has been affirmed by the Division Bench shall be followed in stricto sensu while carrying out the process of allocation as far as private respondents are concerned. The writ petition is allowed to the extent indicated above. In the peculiar facts and circumstances of the case there shall be no order as to costs.