Courts Update Madras HC dismisses PIL against the appointment of Additional...

Madras HC dismisses PIL against the appointment of Additional AGs, says no merit in the plea

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Madras Sept 4(ILNS): The Madras High Court on Friday dismissed with costs a Public Interest litigation petition seeking quashing of the appointment of two Tamil Nadu Additional Advocates General while observing that there is no merit in the Petition and it may have been better if the Petition had not been pressed.

The Division Bench comprising of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu passed this order while hearing a PIL filed by H.Rajaram.

The Court said that, though the submission in the case commenced with the caveat that the person appointed is not sought to be attacked, it is possible that it is such person against whom the petitioner canvasses.

The Court had declined to receive the so-called public interest litigation on a previous date and had requested the petitioner to consider, upon consultation with senior members of the Bar, as to whether the seemingly trivial matter had to be pursued.

The Bench said that such request was not made because the court was shy of dismissing or not receiving an undeserving petition but to ensure that a sense of harmony prevailed and there was no discord as to who ought to represent the State, irrespective of whichever government may be in power. Unfortunately, the Court’s attempt may have exposed the court to the subsequent filing of documents to sustain an utterly unmeritorious cause.

For a start, it was an uninformed petition in that the petitioner was not even aware as to which notification applied to the matter as the notification sought to be assailed had been amended. It was irresponsible on the part of the petitioner to approach this court with a public interest litigation by relying on an outdated notification.

The Bench further said that the petitioner engages in tautology in trying to suggest that there is a distinction between an order made in the name of the Governor and an order made on the authority of the Governor.

In the constitutional scheme of things, the role of the Governor is limited in his executive functioning. There are only a few subjects that the Governor of a State has exclusive authority to decide on his own, in terms of the Constitution.

“In practice, what is done is that the government of the day recommends a matter of business to be transacted upon the authority of the Governor or his consent being obtained in such regard. It is possible that the Governor may not agree with the nature of the business, whereupon the Governor may send the matter back for reconsideration; however, the primacy accorded to the elected government of the day is that upon its re-assertion of the matter, the Governor, as the figurative head, may be bound, which the polite expression “aid and advise” used in the Constitution in such context implies”, the order reads.

The Court held that,

There is no basis to the underlying submission of the petitioner that the government of the day may not have the authority to appoint any Additional Advocate-General or any other person to represent it in a court of law in any matter or in any manner that the government may choose to do. It is true that the Constitution only provides for the post of an Advocate-General.

It is equally true that Article 165 of the Constitution ought not to have been referred to in one of the impugned notifications. The authority to appoint in this case is under a notification issued by the government itself, as amended. Such notification permits regular advocates to be named as representing the State in matters before the High court and even the Supreme Court.

Further, when an authority has the jurisdiction to pronounce on any aspect, the mere reference to a wrong source or an erroneous provision would have no bearing on the power of the functionary to carry out the relevant action.

Accordingly, the Court dismissed the Petition./ILNS/AP/SNG

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