Document Fragment View

Matching Fragments

2. The writ petition was filed on 9-3-1994 and the Rule Nisi was issued on 11-3-1994. In W.M.P. No. 6669 of 1994 seeking an injunction restraining the second respondent from discharging his duties, notice was ordered on 11-3-1994. The prayer in the writ petition is for the issue of a writ of mandamus to direct the first respondent to remove the second respondent from the office of the Advocate-General for the State of Tamil Nadu. The writ petition has been filed by an Advocate enrolled in the year 1959 and who is today a Member of the Tamil Nadu Legislative Assembly. He also claims to be one of the General Secretaries of the Tamil Nadu Congress Committee. He professes to file the writ petition in the public interest. The second respondent was appointed as the Advocate-General for the State of Tamil Nadu and he assumed office on 3-7-1991. It is not disputed that he was appointed by the Government in power, ruled by the A.I.A.D.M.K. party. The affidavit proceeds to say that the office of the Advocate-General is a very important public office and he has wide powers both under the Constitution of India as well as several enactments like the Civil Procedure Code, Contempt of Courts Act, and the Advocates Act. He is considered as the leader of the Bar and is given the utmost respect by the High Court. The Advocate-General is appointed under Art. 165 of the Constitution of India by the Governor of the State. He must be a person qualified to be appointed as a Judge of the High Court. His duties are to advice the Government upon such legal matters and perform such duties of a legal character as may from time to time be referred to or assigned to him by the Governor. He holds office during the pleasure of the Governor. Consequently, the petitioner says that only a person with good antecedent and background should be appointed as an Advocate-General. In the instant case, the petitioner refers to three circumstances as vitiating the appointment of the second respondent as Advocate-General. (1) In Contempt Application No. 69 of 1994 pending on the file of this Court, affidavits have been filed implicating the second respondent in the matter of printing and publishing wall-posters denigrating the judiciary. (2) On 2-11-1981, the second respondent was appointed as a Legal Adviser of the Tamil Nadu Industrial Investment Corporation Limited thereinafter called (TIIC), a Government of Tamil Nadu under-taking. A written complaint was made by one Mr. Nalla Gounder, complaining about the second respondent's conduct in demanding a sum of Rs. 10,000/- for offering a legal opinion on the title of the property offered by the said Nalla Gounder as security for a loan sought for from the TIIC. The TIIC sought the opinion of the Government and the Government by a letter dated 31-1-1985 instructed the TIIC to remove the second respondent from the panel of the legal Advisers. (3) There were certain proceedings against the second respondent before the Bar Council of Tamil Nadu.

3. Of the three instances, the first and the third instances were admittedly, after the appointment of the second respondent. According to the petitioner, the appointment of the second respondent as Advocate-General without looking into his antecedents and background especially, with particular reference to the removal, as a panel advocate from the TIIC, vitiates his appointment. Therefore, according to the petitioner, the second respondent '"is not qualified to be appointed as a Judge of the High Court and cannot be the Advocate-General for the State of Tamil Nadu."

4. Counter affidavits have been filed both by the first as well as the second respondent. Both of them have been sworn to the affidavits, on 23-3-1994. I will refer to the counter affidavit of the second respondent first, because the counter affidavit of the first respondent refers to and relies on the counter affidavit of the second respondent. Here and now I must point out that neither of the counter affidavits raise any objection as to the maintainability of the writ petition. The second respondent says that he is in no way concerned with the alleged printing and publishing wall-poster giving rise to the Contempt Application No. 69 of 1994. On the second instance, he says, that he never demanded any amount from the said Nalla Gounder and for the first time now, he has come to know about the complaint of Nalla Gounder. All that he is aware of is that the TIIC wrote a letter on 1-3-1985 and he promptly accepted the removal from the post of the Legal Adviser to the TIIC. So far as the third instance is concerned, he says that by proceedings dated 8-9-1993, the Bar Council of Tamil Nadu decided not to refer the matter to the disciplinary committee because there was no prima facie case. The second respondent further says that the writ petition has been filed with political motives and is not a bona fide action. In the counter affidavit of the first respondent, it is stated that the first instance is subjudice and that no notice of contempt was issued to the second respondent. It is admitted that the affidavits have been filed in the said proceedings involving the second respondent in the printing and publishing of wall-posters. It is categorically stated that the second respondent was appointed as Advocate-General because of his merits, his ability and his integrity and his competence as a lawyer. It is however, stated that the Government was not aware of the removal of the second respondent from the panel of the Legal Adviser to the TIIC. He proceeded to say that the TIIC files, were called for, and examined by the Government. He proceeded to say that the allegation of Nalla Gounder, was not brought to the notice of the second respondent. It is admitted that the Government wrote a letter directing the removal of the second respondent from the post of the Legal Adviser to the TIIC. Therefore, it is contended that, in the absence of any opportunity, having been afforded to the second repondent, the allegation that he "demanded illegal gratification" is not justified. They also refer to the fact that the second respondent has solemnly affirmed and stated on oath that he never demanded any amount from Nalla Gounder. Therefore, the first respondent concludes "The Government states that it has full confidence that in the integrity, ability and competence of Thiru K. Subramanian and has no hesitation whatsoever in stating that the writ petition which has been filed by the petitioner should be be dismissed with costs of the respondents. The second respondent is and continues to be fully qualified under Art. 165 read with Art. 217 of the Constitution of India to hold the post of the Advocate-General of the State. No allegations regarding the absence of Constitutional qualifications are marie of, in which event, it is submitted that the allegations, in the affidavit filed in support of the writ petition do not entitle the writ petitioner to a wirt of mandamus as prayed for, as the incumbent of the Office would otherwise be entitled to continue to occupy the Office."

6. On 5-4-1994, the petitioner has not only sworn to a reply affidavit meeting the allegations in the counter affidavits of the respondents, but has also filed Miscellaneous Petition No. 9612 of 1994 seeking permission to file an additional affidavit raising addi-tional grounds in support of the writ petition. In the reply affidavit, it is stated that the Government was aware of the removal of the second respondent from the panel of Advo-cates to the TIIC. It is further stated that files relating to the removal of the second respon-dent are being burked by the respondents. It is aslo stated that the complaint of Nalla Gounder, in fact, discloses a cognizable offence against the second respondent. In the affidavit filed in support of W.M.P. No. 9612 of 1994, three more instances are quoted which happened subsequent to the appointment of the second respondent and which according to the petitioner makes the continuance of the second respondent as Advocate-General, injurious and contrary to the public interest. These instances are as follows:--