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Allahabad HC tells UP govt: Not filling up post of Advocate General distasteful

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The Lucknow Bench of the Allahabad High Court has told the Uttar Pradesh government that the non-appointment of a new Advocate General in Uttar Pradesh, despite the resignation of the last one more than a month ago, is distasteful situation and cannot be accepted in the constitutional scheme.

The Division Bench of Justice Devendra Kumar Upadhyaya and Justice Subhash Vidyarthi passed this order while hearing a PIL filed by Rama Kant Dixit.

The petition invokes our jurisdiction under Article 226 of the Constitution of India and has been filed ostensibly in public interest by a practicing lawyer of the Court.

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Prayers made in the petition are extracted herein below:-

“1. To issue a writ of mandamus thereby directing the respondent number two to appoint new Advocate General for State without any further delay after accepting the resignation of the respondent number three already submitted to the Government  long back.

2. To issue a writ of Mandamus thereby directing the Government of Bharat as well as State of Uttar Pradesh to fix the monthly remuneration which is to be paid the AG (Attorney General for Bharat as well Advocate General for the State) for performing the duties of the office.

3. To issue any such other order or direction which this Hon’ble Court may deemed fit and proper in the facts and circumstances of the present case.”

Chief Standing Counsel Abhinav N. Trivedi, representing respondent no 2, has drawn our attention to certain averments in the writ petition and submitted that the petition has been sworn in the affidavit filed in support of the petition by the petitioner on the basis of his personal knowledge.

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He has stated that any PIL with such unsubstantiated, irresponsible, reckless and even scandalous pleadings should not be entertained.

He specifically draws the attention of the court alleging in respect of the lawyers’ community at large stating that some ‘big lawyers’ are trying to manage their appointment as Advocate General and for that they are willing to pay crores of rupees to persons who can manage their appointment on the post.

Further averment is that this is happening because crores of rupees per year are being paid to the Advocate General from the State Exchequer and by “good use” of his office, he can manage hundreds of crores of rupees from other sources.

When the court perused the affidavit filed in support of the writ petition, the Court found that the contents of paragraphs 1 to 21, which include paragraph 15, have been sworn by the petitioner to be true on the basis of his personal knowledge. As to what is the source of such irresponsible, reckless and even scandalous statements is not disclosed and the only source disclosed in the affidavit is the personal knowledge borne by the petitioner.

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“On our direction, Rama Kant Dixit, the petitioner, is present. When we enquired from him as to what is the basis of such irresponsible statement made in the writ petition, he has stated that he has simply put his signature on the writ petition even without going through the averments made therein.

We appreciate the candid confession made by the petitioner, who is a practising lawyer of this Court of standing having 27 years, however, we are not impressed. He has also informed that he is a member of the Governing Council of Oudh Bar Association. We also express our concern for the manner in which such a statement appears to have been made in the writ petition, that too, in a petition filed allegedly in larger public interest. We are constrained to observe that filing a PIL with no sense of responsibility cannot be appreciated. Such an act on the part of the petitioner is reprehensible,” the Court said.

In view of the matter, the Court opined that the petition should not be permitted to be pursued any further by the petitioner. Accordingly, we discharged him from the petition.

Considering the prayers made in the writ petition, the Court found that the writ petition concerns itself with the appointment of the Advocate General, a constitutional functionary, in the state of Uttar Pradesh. The petition contains another prayer regarding a direction to be issued to the Government of India as well as State of UP to fix monthly remuneration which is to be paid to the Attorney General and to the Advocate General for performing the duties of their respective offices.

In support of the said prayer, certain averments have been made in the writ petition. However, when the court perused the said averments made in support of prayer no 2, the Court further found that no details as regards the remuneration being paid or drawn by either Attorney General or Advocate General in the State of UP have been given. The writ petition also lacks adequate pleadings in support of this prayer.

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Such information ought to have been obtained by the petitioner before making any averments of the nature which have been made in the writ petition in support of the said prayer. Accordingly, the Court observed that the petition, so far as prayer no 2 is concerned, cannot be entertained on account of deficient pleadings in this regard. The petition to that extent is dismissed.

The Court, however, found that prayer no1 made in the writ petition concerns public at large, as non availability of the Advocate General, who is a constitutional functionary, cannot be said to be in the interest of any one including even the State executive.

As regards the appointment of Advocate General, lengthy submissions have been made by Asok Pande relying upon a Division Bench judgment of the Court delivered on 21.08.2014 in Writ Petition No.7335 (M/B) of 2021 (Rohin Tripathi vs. State of U.P. and others).

The Court held that the judgment in the case of Rohit Tripathi (supra) refers to a judgment of Supreme Court in the case of M. T. Khan and others vs. Government of A.P. and others, reported in (2004) 2 SCC 267. Observations made by the Division Bench of this Court in the case of Rohit Tripathi (supra) are of some relevance considering the issue raised in this petition. It is not in dispute that in terms of Article 165 of the Constitution of India, Advocate General has to be appointed, who discharges not only his constitutional obligations as mandated by Article 165 of the Constitution of India, but also his other statutory functions and duties mandated by various legislations such as Code of Criminal Procedure, Code of Civil Procedure and Contempt of Courts Act and may be certain other enactments or legislations. There is no doubt that as per the scheme of our Constitution, any vacancy in the office of Advocate General should not be permitted to remain unfilled without any effort to fill it up.

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It has been informed that the incumbent Advocate General has tendered his resignation, though the same has not been accepted. Thus, the factual scenario which emerges is that at present the office of Advocate General is not vacant. However, we have also been informed that the incumbent Advocate General after submitting his resignation from the office has vacated his official accommodation, he has also vacated his office in the High Court, Lucknow and further that he has not been discharging the duties and functions of the office of Advocate General.

At this juncture, Chief Standing Counsel Abhinav N. Trivedi submitted on the basis of instructions that resignation tendered by incumbent Advocate General and the matter relating to appointment of new Advocate General will be taken up simultaneously by the State Government and he has been instructed to pray that two weeks’ time may be granted.

The Court has already noticed above that the office of Advocate General cannot be permitted to be left vacant. Any vacuum in the office of a constitutional functionary may lead to a very unsavoury situation and that would be completely impermissible not only having regard to the scheme of our Constitution, but also bearing in mind various statutory functions which are to be performed by the Advocate General.

The Court, thus, feels that time as prayed for by the State through Chief Standing Counsel is more than required. The Court expects that a decision in this regard shall be taken at the earliest and for the said purpose we grant a week’s time. The Court expresses solemn hope and expectation that by the next date of listing, the State shall take all remedial measures to ensure that the office of Advocate General does not remain either vacant or non-functional.

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For the reasons disclosed in the preceding paragraphs the Court has discharged the petitioner from the petition and appointed Satish Chandra Kashish, a practising lawyer of the Court, to assist us as Amicus Curiae in the matter. Asok Pande shall also be at liberty to assist the Court in the matter on the next date.

The Court directed the Office to change the cause title of the present petition and register it as “Suo Motu PIL in re: Appointment of/Vacancy in the office of Advocate General” and listed the case on May 16, 2022 as fresh.

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