Holding

A State may appoint any number of lawyers for litigation but may appoint only one Advocate General; Additional Advocate Generals, even if designated, do not hold constitutional office and cannot exercise the Advocate General's constitutional or statutory functions.

Summary

The appellants challenged the appointment of two Additional Advocate Generals by the Government of Andhra Pradesh, arguing that Article 165 of the Constitution permits only a single Advocate General and that the additional appointments were unconstitutional. The State contended that the appointments were necessary due to increased workload and fell within its executive power under Article 162. The Supreme Court held that while a State may appoint any number of lawyers to represent it, it may appoint only one Advocate General, and any Additional Advocate Generals cannot exercise the constitutional or statutory functions of the Advocate General. The Court emphasized a literal, golden‑rule interpretation of Article 165, rejecting the High Courts' reliance on Article 367 and Section 13 of the General Clauses Act to read the singular provision as plural. Consequently, the appointments of Additional Advocate Generals are valid only as executive appointments and do not confer constitutional office. The appeal was dismissed, upholding the High Court's decision on different grounds.

Issues considered

Whether Article 165 of the Constitution authorises the appointment of Additional Advocate Generals.
Whether Additional Advocate Generals can perform the constitutional and statutory functions of the Advocate General.
Whether the singular wording of Article 165, read with Article 367 and Section 13 of the General Clauses Act, includes a plural meaning.
Whether the power to appoint Additional Advocate Generals can be sourced to Article 162 of the Constitution.

Legislation cited

Code of Civil Procedures. Section 92
Code of Criminal Procedure, 1973s. Section 24, s. Section 25
Constitution of Indias. Article 162, s. Article 165, s. Article 367
General Clauses Act, 1897s. Section 13

Subjects

Advocate GeneralAdditional Advocate GeneralConstitutional interpretationArticle 165Article 162Executive powerStatutory constructionSingular vs plural

Judgment

M.T. KHAN AND ORS. A
v.
GOVERNMENT OF ANDHRA PRADESH AND ORS.

JANUARY 5, 2004

(V. N. KHARE, CJ AND S.B. SINHA, J.] B

Constitution of India, 1950; Articles 162, 165 and 367:

Appointment of Additional Advocate Generals by the State-Challenge
to-Writ Petition dismissed by High Court holding that having regard to C
Article 367 of the Constitution and Section 13 of the General Clauses Act, the
provisions for appointment of an Advocate General in singular would include
plural-It cannot be presumed that Additional Advocate General/Generals so
appoi111ed would pe1:form Constitutional functions-On appeal, Held: State, in
exercise of its executive power, is competent to appoint as many Lauyers of D
its choice as it thinks adequate to defend it in the legal proceedings-State
could also confer on them such designation as it may deem fit and proper but
they can no/ be authorized to perform Constitutional/Statutory functions-
However, State could not appoint more than one Advocate Genera/-
Interpretation of Statute-Golden rule of literal interpretation-Code of
Criminal procedure, 1973; Ss. 24, 25/General Clauses Act; Section 13. E
faecutive power vis-a-vis Constillltional power-Exercise of-Distinction
between-Discussed

Words and Phrases:
F
'"1111/ess the context otherwise requires "-Meaning of in the context of
Article 367 of the Constitution of India.

The question which arose in this appeal was as to whether the State
has power/authority to appoint Additional Advocate Generals in terms of
Article 165 of the Constitution of India. G
It was contended for the appellants that Article 165 of the
Constitution of India is clear and unambiguous and thus being not open
to any interpretation; that provision of Section 13 of the General Clauses
Act and Article 367 of the Constitution could not be invoked in the facts
I I7 H
118 SUPREME COURT REPORTS [2004) I S.C.R.

A and circums1ances of 1he case; that the appointment of Additional
Advocate General under Article 165 of the Constitution by the State was
without jurisdiction; and that the Advocate General is not only required
to discharge constitutional functions but also statutory functions.

On behalf of the respondents, it was submitted that appointment of
B Additional Advocate General has necessitated because of increase in
workload and the Advocate General alone could not handle such a heavy
workload; and that State possess po\ver to appoint Additional Advocate (
General.

Dismissing the appeal, the Court
c
HELD: I.I. Provision under Article 165 of the Constitution clearly
shows that the Governor of the State has power to appoint a person who is
qualified to be appointed as Judge of a High Court, as Advocate General. 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
D

·-
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 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
•
E functions. 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 the State intended to endow such responsibility upon
him. (112-C-G)
'
1.2. The Government of a State as a litigant can appoint as many
F Lawyers as it likes to defend it. The State is not prohibited from conferring
such designation on such legal practitioners as it may deem fit and proper.
But, the State cannot appoint more than one Advocate General. (122-H( ~

1.3. High Courts, in their various decisions including the impugned
judgment, have proceeded on the basis that having regard to the provisions
G
of Section 13 of the General Clauses Act and Article 367 of the
Constitution of India, singular would include plural. The High Courts
committed an error insofar as they failed to take into consideration the
crucial words occurring in Article 367 of the Constitution "unless the
context otherwise requires". It is a well-settled principle of law that the
H provisions of the Constitution shall be construed having regard to the
M.T. KHAN v. GOVT. OF A.P. 119
expressions used therein. T.he question of interpre\ation of a Constitution A
would arise only in the event the expressions contained therein are vague,
indefinite and ambiguous as well capable of being given more than one
meaning. Literal interpretation of the Constitution must be resorted to.
If by applying the golden rule of literal interpretation, no difficulty arises
in giving effect to the Constitutional scheme, the question of application B
of the principles of interpretation of a statute would not arise. 1123-A-DI

Gurudevdal/a Vksss MaiJ·adit and Ors. v. Stale of Maharashtra and Ors.,
)
12001 I 4 SCC 534 and Bairam Kumawat v. Union of India and Ors., (20031
7 sec 628, relied on.

1.5. It cannot be said that the appointments of Additional Advocate C
Generals cannot be traced to the source of the State's power under Article
162 of the Constitution of India. It is now well-settled principle of law that
non-mentioning or wrong mentioning of a provision of law does not
invalidate an order in the event it is found that a power therefor exists.
(124-DI D
Union of India v. Khagan Singh. AIR (1992) SC 1535 and State of
• Karnataka v. Krishnaji Srinivas Kulkarni and Ors., ( 19941 2 SCC 558,
referred to.

1.6. The matter relating to the appointment of a legal practitioner E
by a Government may be subject-matter of a legislation. The State by
amending the provisions of Sections 24 and 25 of the Code of Criminal
Procedure may make a law regulating the appointment of the Public
Prosecutor or Additional Public Prosecutor. Such a law can also be made
for regulating appointment of other State counsel. In the absence of any
legislation in this behalf, various States have laid down executive F
instructions. Thus, the State in exercise of its jurisdiction under Article
162 of the Constitution of India, is competent to appoint a lawyer of its
choice and designate him in such manner as it may deem fit and proper.
Once it is held that such persons who are although designated as
Additional Advocate Generals are not authorized to perform any G•
constitutional or statutory functions, indisputably such an appointment
must be held to have been made by the State in exercise of its executive
power and not in exercise of its constitutional power. Consequently,
Additional Advocate General so appointed is not in constitutional scheme
and does not hold constitutional office. (124-H; 125-A-CI
H
120 SUPREME COURT REPORTS [2004] I S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4 of 2004.

From the Judgment and Order dated 30.4.1998 of the Andhra Pradesh
High Court in W.P. No. 13202 of 1998.

Har Dev Singh and Ms. Madhu Moolchandani for the Appellants.
B Sudhir Chandra and Guntur Prabhakar for the Respondents.

The Judgment of the Court was delivered by
(
V. N. KHARE, CJ. Leave granted.

C The authority of a State to appoint Additional Advocate General in
terms of Article 165 of the Constitution of India is the core question involved
in this appeal which arises out of a judgment and order dated 30.4.1998
passed by the High Court of Andhra Pradesh in Writ Petition No.13202 of
1998.

D The appellants herein filed the aforementioned writ petition questioning
the appointment of two Additional Advocate Generals by the Government of
Andhra Pradesh on various grounds. The main contention of the appellants
raised before the High Court as also before us, however, is that having regard 4
to the expression used in Article 165 of the Constitution of India appointment
of more than one Advocate General is not contemplated therein.
E
The High Court negatived the said contention holding : {i) Having
regarding to A11icle 367 of the Constitution of India as also Section 13 of the
General Clauses Act, 1897, the provision in singular for appointment of an
Advocate General would include plural; (ii) Having regard to the fact that
Additional Advocate Generals have been appointed in the States of Rajasthan,
F Jammu & Kashmir and Kerala, there is no reason as to why Additional
Advocate Generals cannot be appointed in the State of Andhra Pradesh.; and
(iii) Merely because there is a post of Additional Advocate General, the same
would not mean a.nd imply that Additional Advocate General can perform the
constitutional statutory functions.
G In support of its findings, reliance has been placed on M.K.
Padmanabhan v. State of Kera/a, [1978] 1 LAB.LC. 1336; Regional Transport
Authority, Jodhpur v. Sitaram, AIR (1993) Rajasthan 76 and Bhadreswar v.
S.N. Choudhury, AIR (1985) Gauhati 32.
Mr. Har Dev Singh, learned Senior Counsel appearing on behalf of the
H appellants, in support of the appeal contended that having regard to the fact
M.T. KHAN v. GOVT. 01' A.P. [V. N. KHARE, CJ) 121

that Article 165 of the Constitution of India is clear and unambiguous and, A
thus, being not open to any interpretation, the provisions of Section 13 of the
General Clauses Act as also Article 367 of the Constitution of India could not
be invoked as the same applies in dealing with interpretation "unless the
context otherwise requires".

The submission of the learned senior counsel is that Article 367 is B
applied having regard to Article 372 of the Constitution of India which in
turn deals with adaptation of existing law, which has got no relevance in the
)
instant case. The learned counsel urged that if such an interpretation is given
to Article I65 of the Constitution of India, Articles 53, 63, 74, 76, 124, 148,
168, 216, 234 and 280 of the Constitution of India will have to be interpreted C
similarly which would lead to absurdity. It was contended that Advocate
General appointed under Article 165 of the Constitution of India is not only
required to discharge constitutional functions assigned to him, as for example,
he has a right to address the Houses of Legislature under Article 177 of the
Constitution; but also statutory functions in tern1s of Section 302 of the Code
of Criminal Procedure, Section 92 of the Code of Civil Procedure and Secti1>n D
23 of the Advocates Act. Furthermore, he as a leader of the Bar has a right
of pre-audience. It was submitted that as the appointment of Additional
Advocate General by the Government of Andhra Pradesh in purported exercise
of its power under Article 165 of the Constitution of India was without
jurisdiction, the same are liable to be set aside and such appointment cannot
be saved by tracing their source of power to Article 162 of the Constitution E
of India.

Mr. Sudhir Chandra, learned Senior Counsel appearing on behalfofthe
respondents, on the other hand, contended that the appointment of Additional
Advocate General has necessitated because of the growth and spread of the F
State activities, as a result thereof it is not possible for an Advocate General
alone to handle the heavy work involved on behalf of the State. The learned
counsel further contended that even if it.be held that the State has no power
to appoint Additional Advocate General in terms of Article 165 of the
Constitution of India, such power must be held to exist under Article 162
thereof. G
Article 165 of the Constitution of India reads thus :

"165. Advocate-General for the State~(I) 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. H
122 SUPREME COURT REPORTS [2004] I S.C.R.

A (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.
B
(3) The Advocate-General shall hold office during the pleasure of
the Governor, and sh"lll receive such remuneration as the Governor
may determine."

A bare reading of the said provision clearly go to show that power of
C 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 a holders of
constitutional posts including the Attorney General of India, Comptroller and
Auditor General of India, the Chief Justice and Judges of the High Courts
D and 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 therefor is obvious. If more than one person is
E appointed to discharge the constitutional functions as also the statutory
functions, different Advocate Ge~erals may act differently resulting in a chaos.
The State and the other litigants would in such an event would be totally at
a loss as to which opinion the decision to be acted upon. The office of the
Advocate General is a public office. He not only has a right to address the
F Houses of Legislature but also is required to perform other statutory functions
in terms of Section 302 of Code of Criminal Procedure, Section 92 of the
Code of Civil Procedure and Section 23 of the Advocates Act. Each of such
functions 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 the State
G intended to endow such responsibility upon him.
The Government of a State as a litigant can appoint as many as it likes
lawyers to defend it. For the said purpose, the State is not prohibited from
conferring such designation on such legal practitioners as it may deem fit and
proper. But, the State, in our considered view, cannot appoint more than one
H Advocate General.
-
M.T. KHAN v. GOVT. OF A.P. [V. N. KHARE, C.i] 123
The decisions of the High Courts including the impugned judgment, as A
noticed hereinbefore, have proceeded on the basis that having regard to the
provisions of Section 13 of the General Clauses Act and Article 367 of the
Constitution of India, a singular would include a plural. The High Courts
while adopting the said view, in our opinion, committed an error insofar as
they failed to take into consideration the crucial words occurring in Article B
367 of the Constitution "unless the context otherwise requires".

It is a well-settled principle of law that the provisions of the Constitution
shall be construed having regard to the expressions used therein. The question
of interpretation of a constitution would arise only in the event the expressions
contained therein are vague, indefinite and ambiguous as well capable of C
being given more than one meaning. Literal interpretation of the Constitution
must be resorted to. If by applying the golden rule of literal interpretation,
no difficulty arises in giving effect to the constitutional scheme, the question
of application of the principles of interpretation of a statute would not arise
only.
D
In Gurudevdatta Vksss Maryadit and Ors. v. State of Maharashtra and
Ors., [2001] 4 SCC 534, this Court held :

"Further we wish to clarify that it is a cardinal principle of
interpretation of statute that the words of a statute must be understood
in their natural, ordinary or popular sense and construed according to E
their grammatical meaning, unless such construction leads to some
absurdity or unless there is something in the context or in the object
of the statute to suggest to the contrary. The golden rule is that the
words of a statute must prima facie be given their ordinaiy meaning.
It is yet another rule of construction that when the words of the F
statute are clear, plain and unambiguous, then the courts are bound
to give effect to that meaning, irrespective of the consequences. It is
said that the words themselves best declare the intention of the law-
giver. The courts have adhered to the principle that efforts should be
made to give meaning to each and every word used by the legislature
and it is not a sound principle of construction to brush aside words G
a
in statute as being inapposite surpluses, if they can have a proper
application in circumstances conceivable within the contemplation of
... the statute ... "

In Bairam Kumawat v. Union 'of India and Ors., [2003] 7 SCC 628,
this Court held : H
124 SUPREME COURT REPORTS [2004) I S.C.R.

A "The Courts wi II therefore reject that construction which will
defeat the plain intention of the Legislature even though there may be
some inexactitude in the language used. [See Salmon v. Duncombe,
(1886) 11 AC 627 at 634]. Reducing the legislation futility shall be
avoidf:d and in a case where the intention of the Legislature cannot
be given effect to, the Courts wou Id accept the bo Ider construction
B for the purpose of bringing about an effective result. The Courts,
.when rule of purposive construction is gaining momentum, should be
i
very reluctant to hold that the Parliament has achieved nothing by the (
language it used when it is tolerably plain what it seeks to achieve.
(See BBC Enterprises v. Hi-Tech Xtravision Ltd., [1990] 2 All ER
c 118 at 122-3)"

We are, however, unable to agree with the submission of Mr. Har Dev
Singh to the effect that the appointments of Additional Advocate Generals
cannot be traced to the source of the State's power under Article 162 of the
Constitution of India. It is now well-settled principles of law that non-
D mentioning or wrong mentioning of a provision of law does not invalidate an
order in the event it is found that a power therefor exists.

Jn Union of India v. Khazan Singh, AIR (1992) SC 1535, this Court
held:

E "... The Appellate Authority did not ·mention in its order as to under
which sub-rule of Rule 25(1) the appeal was being disposed of. The
tribunal while noticing Rule 25(\)(e) of the rules and conceding that
the Appellate Authority could remand the case to the disciplinary '
authority for further inquiry under the said sub-rule, grossly erred in
setting aside the order on the concession of the learned counsel to the
F effect that the Appellate Authority had passed the order under Rule
25(\)(d) of the Rules ..."

In State of Karnataka v. Krishnaji Srinivas Kulkarni and Ors., [1994]
~ ' •
2 SCC 558, this Court held :
G " ... Quotation of a wrong provision does not take away the jurisdiction lo
of the authorities to inquire under Section 79-8(3) of the Act..."

The matter relating to the appointment of a legal practitioner by a
Government may be subject-matter of a legislation. The State by amending
v4
the provisions of Sections 24 and 25 of the Code of Criminal Procedure may
H
M.T. KHAN v. GOVT. OF A.P. [V. N. KHARE, CJ] 125
make a law regulating the appointment of the Public Prosecutor or Additional A
Public Prosecutor. Such a law can also be made for regulating appointment
of other State counsel. In absence of any legislation in this behalf, various
States have laid down executive instructions. Thus, the State in exercise of
its jurisdiction under Article 162 of the Constitution of India, is, in our
considered view, competent to appoint a lawyer of its choice and designate B
him in such manner as it may deem fit and proper. Once it is held that such
persons who are although designated as Additional Advocate Generals are
) not authorised to perform any constitutional or statutory functions, indisputably
such an appointment must be held to have been made by the State in exercise
of its executive power and not in exercise of its constitutional power.
Consequently, Additional Advocate General so appointed is ndt in C
constitutional scheme and does not hold constitutional office.

For the reasons aforementioned, we are of the opinion that the impugned
Government orders need not be set aside. For the aforementioned we upheld
the judgment under appeal, albeit for different reasons. The appeal is dismissed.
No costs. D
Appeal dismissed.