AI Structured Summary
Not yet generated for this judgment
Judgment
Srinivasan, J.—W.P. No. 2505 of 1995, apparently for issue of mandamus, is really one for issue of quo warranto against the second
Respondent, who is holding the post of Advocate-General of Tamil Nadu from 21-4-1994. There is no allegation of any infirmity or illegality in the
appointment. According to the Petitioner, who is an advocate in this Court, the second Respondent is not entitled to continue to fraction as
Advocate-General in view of the serious charges made against him. In the affidavit filed in support of the writ petition, three matters have been set
out referring to certain events which have taken place after the appointment of the second Respondent, consequent to which, according to the
Petitioner, the second Respondent''s continuation in office will be illegal and against public interest. The first of them is that the Governor of Tamil
Nadu has made an indictment against the second Respondent imputing serious professional misconduct in an exclusive interview given to the
representative of a fortnightly magazine by name ''Front Line'', while replying to a question put by the representative of tile magazine as regards the
ideal relationship between the Chief Minister and the Governor. The latter is reported to have said inter alia
...There were some Writ Petitions in which the Advocate-General works against me. The Advocate-General is my advocate. He doesn''t (function
so). Then the Advocate-General also sets up people to work against me....
According to the Petitioner, the aforesaid answer would imply that the Governor, who is the highest Constitutional functionary in the State, is
accusing the second Respondent of serious professional misconduct, for which he is liable to be dealt with under Rule 24 of the Bar Council of
India Rules and he cannot, therefore, continue to be the Advocate-General. The Petitioner sent a telegram dated 11-2-1995 to the Governor, the
Chief Minister, the Chief Justice of the High Court, the Chief Secretary to the Government and the Secretary to the Government, Home
Department, making a demand to relieve the second Respondent from the post of Advocate-General.
The second event referred to in the affidavit is that the second Respondent was a party in T.O.S. No. 28 of 1982 and C.S. No. 149 of 1980 on
the Original Side of this Court, being an executor of a will stated to have been executed by one Pad-mini Chandrasekaran. In O.P.117 of 1981 a
learned single judge of this Court, passed an order on 21-7-1981 condemning the second Respondent for getting the aforesaid will probated
without mentioning in the petition that the testatrix had a legal heir in her husband. A few days after assuming office of the Advocate-General on
21-4-1994, he got into the witness box, gave evidence and subjected himself to cross-examination in the testamentary proceedings. According to
the affidavit, in the 150 years history of the Madras High Court, an Advocate-General getting into the box and giving evidence is unheard of and
serious allegations tint the will was brought about by the second Respondent for his personal benefit have been made in the said proceedings. The
State Government had overlooked that aspect before appointing the second Respondent as Advocate-General. It is, therefore, not in keening with
fen dignity of the high office to allow him facing such serious charges to hold the office.
The third event ht that the second Respondent initiated proposals for designating Thiru. Mohan Parasaran as a Senior Advocate and
recommended relaxation of the Rules stipulating 15 years of minimum practice, though the advocate had completed only 9 years and five months at
that time. The proposal was rejected by the Fall Court in A meeting held on 6-2-1995 and the, conduct of the second Respondent in
recommending the case of an advocate who did not have the requisite standing is not only arbitrary and discriminatory but also motivated. As the
Full Court has rejected his proposal, he ought to have submitted his resignation and thereby saved the stature and dignity of the high office.
The Petitioner has no alternative remedy but to approach due Court. On the aforesaid allegations, the Petitioner has prayed for issue of writ of
mandainus or any (c)titer appropriate writ or direction in the nature of writ directing the State of Tamil Nadu, the first Respondent, to remove the
second Respondent from the office of the Advocate-General.
The writ petition was presented on 16-2-1995. Obviously, the original affidavit in support of &e writ petition was not presented in Court on that
day, though a xerox copy was presented along with the Miscellaneous Petition for injunction, The original affidavit was presented on the next day
i.e., 17-2-1995. It was posted for admission on 20-2-1995 and after it was heard for some time, the Petitioner who is appearing in person,
requested for an adjournment and it was posted to 6-3-1995. By that time, the local newspapers had publicised the filing of the writ petition and
on 6/3/1995 the Government Pleader took notice for Respondents 1 and 2. The learned single judge ordered notice of motion to the third
Respondent returnable by 17-3-1995. Even on 14-3-1995, counter affidavits were filed on behalf of Respondents 1 and 2. The third Respondent
viz., the Secretary to the Governor of Tamil Nadu filed a counter affidavit in the injunction petition W.M.P. No. 3979 of 1995. On 16-3-1995 one
E. Ravichandran, a third party, filed W.M.P. No. 6574 of 1995 for impleading him as a party to the writ petition. At the request of the Petitioner,
the matter was adjourned from 17-3-1995 to 28-3-1995. The Petitioner filed W.M.P. Nos. 7463 and 7464 of 1995 to implead the ""Front Line
Magazine represented by its Editor and Sri S. Viswanathan, Press CorRespondent (W.M.P. No. 7463 of 1995) as well as Sri Mohan Prarasaran
(W.M.P. No. 7464 of 1995) as parties to the writ petition.
The Petitioner also filed W.P. No. 4294 of 1995 on 21-3-1995 for issue of mandamus to forbear Respondents 1 to 3, viz., the State of Tamil
Nadu, represented by its Chief Secretary, the Secretary to Government, Public (Estt. I) Department and the Secretary to Governor of Tamil Nadu
from continuing the 6th Respondent viz., Sri. R. Krishnamoorty in the office of the Advocate-General of Tamil Nadu in violation of G.O. Ms. No.
607, Public (Estt. I) dated 28-3-1991. Annexure-I, Sub-clauses 3(c) and (4) issued by the second Respondent relating to the Law Officers of the
High Court, Madras. That writ petition was also directed to be posted along with W.P. No. 2505 of 1995. No orders have been so far passed in
that writ petition. The matter was heard for some time on 28-3-1995 when the Court time was over. On that day, the Petitioner was heard in
extenso and at the close of the Court hours, it was adjourned to 3-4-1995 on the request of the Petitioner. The learned single judge get an
impression that the Petitioner was not inclined to go on with the case before him and felt some embarrassment in hearing the case. He directed the
papers to be placed before the Hon''ble the Chief Justice for posting it before some other learned judge. He passed a detailed order setting out the
representations made before him at that time. Thereafter, the matter was posted before another learned single judge as directed by the Hon''ble the
Chief Justice but that learned judge also expressed his embarrassment in hearing the matter and requested the Hon''ble the Chief Justice to post it
before another learned judge. Thereupon, the Hon''ble the Chief Justice directed the matter to be posted before a Division Bench and the matter
has now come before us.
In the counter affidavit filed by the third Respondent in W.M.P. No. 3979 of 1995, apart from the objections taken to the maintainability of the
writ petition, in view of the provisions of Article 361 of the Constitution of India, a factual statement is made clarifying the position regarding the
allegation said to have been made by the Governor against the Advocate-General. It is categorically stated that the statement of the Governor in
the interview given to the representative of the ""Front Line"" did not pertain to the present Advocate-General Thiru R. Krishnamoorthy but his
predecessor-in-office. The counter affidavit has referred to a letter written by the deponent on 21-2-1995 on the instructions of His Excellency, the
Governor of Tamil Nadu to the Advocate General in reply to his letter dated 21-1-1995, wherein the Advocate-General had denied the
statements that he was working against the Governor and that he had set up people against the Governor.
In the counter affidavit filed by the first Respondent, the Chief Secretary to the Government of Tamil Nadu has stated that the Government have
considered the contentions of the Petitioner and the allegations made in tile telegram sent by the Petitioner and found the same to be baseless. It is
also said that the Government has examined the entire issue and have expressed confidence in the second Respondent continuing as the Advocate-
General. Reference is made to the communication sent to the Petitioner on 22-2-1995 setting out the decision of the Government taken on the
contents of his telegram.
The second Respondent, viz., R. Krishnamoorthy, hat filed a detailed counter affidavit. He has extracted in full his letter dated 21-1-1995
addressed to the Governor of Tamil Nadu and the reply thereto from the Secretary to the Governor dated 21-2-1995. As regards the
testamentary proceedings referred to by the Petitioner, the second Respondent has stated that there was no condemnation or indictment against
him in the order passed by the learned single judge. The relevant part of the counter affidavit reads thus:
First of all, Justice Shanmugam has not indicted the in any manner as alleged. The order only states as follows:
The Respondent could have acted more fairly by probating the Will in the solemn form.
It may be stated that the said order has been set aside on appeal in O.S.A. No. 96/83 dated 12.3.84. The matter was taken up to Supreme Court
and orders were passed on 11.9.85 in Civil Appeal No. 4462/84 wherein the judgments passed by this Hon''ble Court in O.P. 117/81 and in
O.S.A.96/83 were set aside and it was directed that on the caveat filed by the husband the matter will be treated as a regular testamentary suit in
the Original side of the High Court Therefore the reference made by the Petitioner to the order of Justice Shanmugam which has been set aside is
mischievous, malicious and false. Since T.O.S. No. 28/82 is pending in this Hon''ble Court as part-heard matter, I am not traversing the other
serious allegations made by the Petitioner in this Writ Petition with reference to the above T.O.S. proceedings except to state that the various
allegations made against the personally are absolutely false, reckless and defamatory. That apart, the references made by the Petitioner about the
above T.O.S. which is pending in that Hon''ble Court, tantamount to interference with the administration of justice.
With reference to the proposal made by him for designating Thiru Mohan Parasaran as Senior Advocate, it is stated in the counter affidavit that
the proposal is not in contravention of any provision of the Advocates Act or the Rules made thereunder and the fact that the High Court had
turned down the said proposal on the basis of its own norms or guidelines cannot amount to an indictment against him.
It appears that the Petitioner had filed a petition to raise additional grounds on the basis of a copy of the deposition of the second Respondent
tendered in T.O.S. No. 28 of 1982. It appears that the copy was not a correct copy nod the second Respondent produced before the Court a
certified copy of the deposition and proved that the copy produced by the Petitioner was not a correct one. On the strength of the wrong copy of
the deposition, the Petitioner wanted to raise an additional ground that the second Respondent it a citizen of Sri Lanka and not eligible to be an
Advocate-General of Tamil Nadu. The counter-affidavit has devoted four paragraphs with reference to tile averments made by the Petitioners the
affidavit filed by him in support of the petition for leave to raise additional grounds. It has become unnecessary for us to dwell on the said aspect of
the matter, as the Petitioner stated before us that he did not pursue the said petition and get it numbered. The petition was never taken on the file of
the Court and the Petitioner has categorically stated before us that he is not pressing the said petition and not placing any reliance on the alleged
copy of the deposition of the second Respondent in T.O.S. No. 28 of 1982. In the circumstances, we are refraining from making any further
reference to that dopy of the deposition the affidavit of the Petitioner, though learned senior counsel for the second Respondent insisted upon our
taking action against the Petitioner for filing a fabricated document before Court and attempting to mislead the Court. Neither the said document,
i.e., the copy of the deposition nor tile petition for leave to raise additional grounds is before us. Even the affidavit filed by the Petitioner in support
of the sail petition has not been taken on file. Hence, we are unable to accede to tile request of the senior counsel for the second Respondent.
Moreover, the Petitioner has tendered before us categorically his unconditional apology for filing the said copy of the deposition without verifying
the correctness of the same and attempting to raise additional grounds on tile strength thereof.
In W.P. No. 4294 of 1995, the grounds urged in the affidavit of the Petitioner are that the Government has issued special instructions to the
Law Officers including the Advocate-General in Annexure I to G.O. No. 607 dated 28-3-1981 whereby the Advocate-General is debarred from
giving advice to private parties in cases in which he is likely to be called on to advise Government and he should hot accept appointment as
Director in any company without the sanction of the Government and the present Advocate-General has violated the said instructions by accepting
the executorship of the will of Mrs. Padmini Chandrasekarn besides trusteeship of the trusts founded by her and being a Director in several private
companies. It is also alleged that according to the G.O., the age of retirement is only 60 years. It is said that the Advocate-General has incurred
disqualification and liable to be removed.
W.P. No. 5854 of 1995 is filed by one R. Sivanesan for issue of a Mandamus directing the State Government and the Secretary to Governor
(Respondents 1 and 3) to remove the second Respondent from the post of Advocate-General of Tamil Nadu. In the affidavit it is averred as
follows:
Mrs. Padmini Chandrasekaran created a trust called M/s. N. Selvarajulu Chetty Trust by a deed dated 11-11-1972 and that the second
Respondent, Ramachandra Chettiar, the father of the Petitioner, Mr. N.C. Raghavachari, Advocate and Mr. H.B.N. Shetty were appointed as
trustees. She executed a will dated 30-9-1975 bequeathing all her properties in favour of the trust wherein the second Respondent and Mr.
H.B.N. Shetty were appointed executors. As Mr. Shetty relinquished his executorship, the second Respondent became sole executor. The will
dealt with immovable properties worth about Rupees 500 crores and precious jewels worth about Rupees 200 crores. The second Respondent
obtained probate in O.P. 117 of 1981. It was revoked on application by the husband of the testatrix. On appeal a Division Bench of this Court
reversed the order in O.S.A. No. 96 of 1983 the husband filed an appeal in the Supreme Court in C.A. No. 4462 of 1984. The second
Respondent conceded for allowing the appeal on 11-9-1985 which is detrimental to the trust. As an executor the second Respondent is in law
bound to reader accounts but he has not cared to obey and respect the law. The second Respondent is enjoying the estate as ""unquestionable
king"" while neglecting and ignoring the pious obligations and charities. He has handed over a portion of the trust properties at Pondicherry to one
Mr. P. Shanmugham, former M.P. to gain some political patronage for his misdeeds in that State. He has donated various precious jewels
embedded with precious gems to his friends and relatives. The second Respondent has no moral, ethical or legal right to continue in the office of
Advocate-General as he is liable for prosecution for swindling the funds of the trust under Sections 406 and 420, I.P.C. When the Governor of
Tamil Nadu acceded sanction for prosecuting the Chief Minister, the second Respondent advised her that she need not resign as the Governor''s
action is totally erroneous and illegal. The second Respondent is instrumental in the Chief Minister filing W.P. No. 5221 of 1995 challenging the
order of the Governor. Thus, he has violated the constitutional obligation under Article 165(2) of the Constitution.
That writ petition was presented on 28-3-1995 and taken on file on 19-4-195. The Hon''ble the Chief Justice has directed that also to be
posted along with W.P. No. 2505 of 1995 and thus all the three writ petitions are before us. W.P. No. 4294 of 1995 and W.P. No. 3854 of
1995 are posted for admission and so far no order has been passed in either of them.
An objection has been raised by counsel for Respondent in W.P.2505 of 1995 as to the maintainability thereof. It is contended that in
substance tin writ petition is for issue of the warranto and unless the holding of the office is questioned on the ground of invalidity of appointment
and incurring of a disqualification as prescribed by law, the writ petition is not maintainable. In other words, the incumbent should have ceased to
be qualified for the post. In this case, according to counsel the averments in the affidavit of the Petitioner do not make out (1) that the second
Respondent was not qualified for the ports the time of appointment, or (2) that the second Respondent has ceased to possess any such
qualification after appointment In the absence of enter factor, the holding of office the second Respondent is legal and he can continue to be in
office during the pleasure of the Governor. The pleasure of the Governor is entirely a matter to be decided by His Excellency and not by a Court.
According to counsel, no Court can direct the Governor to express his pleasure or displeasure or even direct the Governor to consider whether his
pleasure should continue to exist. It is also contended that the confidence reposted by the Government in the Advocate-General is not a matter, for
judicial review. There is no necessity for the incumbent of the office to answer each and every person who questions his integrity and it is not for
the Court to examine such allegations. When the qualification prescribed by the Constitution is not in dispute, the Court cannot make an enquiry
into allegations as to character or conduct and issue directions to the Government to take any particular action. It is also urged that no writ shall be
issued by a Court when it will be futile if the Government finds on its own enquiry the allegations to be false and reiterates its confidence in the
incumbent.
In reply to the said objection the Petitioner has contended that a writ petition cannot be dismissed in limine when there is an arguable case.
According to him the allegations made against the Advocate-General are very serious warranting a detailed inquiry by the Court. Reliance is placed
on the judgment of a learned single judge of this Court relating to the previous Advocate-General, wherein it has been held that in a case where
serious allegations are made against a high Constitutional office, it is in the interest of everybody to disclose all the informations and have a judicial
quietus over the same. It is also contended by him that in this case, the Governor, during whose pleasure, the Advocate-General is to hold office,
has already indicted him with a serious misconduct and, therefore, the Court can infer that the Advocate-General has incurred the displeasure of
the Governor.
The Petitioner has referred to several decisions in support of the proposition that when there is an arguable case, writ petition cannot be
dismissed in limine. Though the Petitioner merely gave the citation and has not read any passage from any of them, we have scanned them and we
do not find any of them to be helpful to the Petitioner in this case. We are here concerned with the maintainability of the writ petition for which
purpose we are assuming the allegations of the Petitioner in the affidavit to be true. Further, in this case the Respondents have taken notice and
filed their counters. We are deciding the issue of maintainability only after hearing both sides. The following rulings are cited by the Petitioner:
AIR 1955 M.P. 355 - the citation is found to be wrong.
British India Corporation Ltd. and Others Vs. The Industrial Tribunal, Punjab and Another, .
Himansu Kumar Bose Vs. Jyoti Prokash Mitter, .
Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, .
Madan v. District Magistrate, 1971(3) SCC 867 .
Ram Chandra Rai v. State of Madhya Pradesh AIR 1971 SC 128
Gyan Chand and Others Vs. State of Haryana and Others, .
Century Spinning and Manufacturing Company Ltd. and Another Vs. The Ulhasnagar Municipal Council and Another, .
Exen Industries Vs. The Chief Controller of Imports and Exports and Others, .
Tej Ram Bery Vs. Union of India (UOI) and Another, .
Veerappa Rachappa Saboji Vs. B.P. Dalal and Another, .
The State of Haryana Vs. The Haryana Cooperative Transport Ltd. and Others, .
Yasin Gulam Haider Vs. State of Maharashtra, .
Bachan Singh and Others Vs. State of Punjab and Others, .
Arun Damka Vs. Additional Inspector-general of Police and Another, .
In fact, the ruling in Exen Industries Vs. The Chief Controller of Imports and Exports and Others, , is to some extent against the Petitioner. It has
been held in tint case nut the High Court can reject a petition under Article 226 of the Constitution, in limine, when it is satisfied that the authorities
whose acts ate impugned have acted property or the Petitioner raises complicated questions of fact for determination.
There is no merit in the contention that the second Respondent has incurred the displeasure of the Governor. We have already referred to the
affidavit filed by the Secretary to the Governor clarifying the position that the statement of the Governor in the interview given to the representative
of the ""Front Line"" related to the former Advocate-General and not to the second Respondent. The Petitioner contends tint the said statement
cannot be accepted. According to him, the clarification is motivated and does not represent the correct state of affairs. The Petitioner places strong
reliance on the present tense used in the relevant sentence: ""...The Advocate-General works against me.... Then the Advocate-General also sets up
people to work against me."" There is no substance in this contention. When the clarification has been issued by the Governor through his
Secretary, there is no earthly reason to reject the same and come to a different conclusion by drawing unwarranted inferences from the ''present
tense'' used in the sentence. The Petitioner, who is so particular about grammar, has not been able to state the meaning to be given and to the
inference to be drawn from tine ''past tense'' used in the same sentence in the first part of it, viz., ""There were some writ petitions."" A reading of the
entire sentence shows that it is not strictly in accordance with grammar and it is not possible for any Court to draw any inference from the tense
used in any part of the sentence''. It is absolutely unnecessary for this Court to go behind the clarification issued by the Governor through his
Secretary. Even assuming for the sake of arguments that the Governor had made a statement earlier against the second Respondent, he is certainly
entitled to withdraw the same on the ground that it was based on a mistake. We have no hesitation to hold, on the materials placed before us, that
the second Respondent has not and had never incurred the displeasure of the Governor.
We accept the argument of counsel for the Respondent that the writ petition is really one for quo warranto, though the prayer is for issue of
Mandamus. It is well settled that a quo warranto will issue in respect of a substantive public office created by a statute or the Constitution. If the
second Respondent is not legally qualified to hold the office or to remain in the office or some statutory provisions have been violated in making the
appointment, which cannot be cured as an irregularity, a quo warranto will issue. In other words, the appointment has to be invalidated for want of
qualifications or violation of mandatory legal conditions or procedure for appointment. A quo warranto will not issue unless there is a clear
infringement of provisions having the force of law as distinguished from there administrative instructions, or some provisions of the Constitution
itself. In the absence of violation of a mandatory provision of the Constitution or a statute, the Court will not issue quo warranto in respect of
appointment to an office held ""at pleasure"". The Court will not also issue a writ which could become futile.
The nature and scope of quo warranto have been set out by a Constitution Bench of the Supreme Court in The University of Mysore and
Another Vs. C.D. Govinda Rao and Another, in the following words:
(6) The judgment of the High Court does not indicate out the attention of the High Court was drawn to the technical nature of the writ of quo
warranto which was churned by the Respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue
in such proceedings.
(7) As Halsbury has observed, (Halsbury''s Laws of England, 3rd Ed. Vol., II, P. 145):
An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or
usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office of franchise might be
determined."" Broadly stated the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public
office, or franchise, or liberty, is called upon to show by what right be holds the said office, franchise or liberty; if the inquiry leads to the finding tint
the holder of the office has no valid tide to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo
warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against
the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen
that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public
office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the
connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly
invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it is thus clear that before a citizen can claim a writ of
quo warranto, be must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that
necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
It has been held Statesman (Private) Ltd. Vs. H.R. Deb and Others, that a High Court in a quo warranto proceeding should be slow to
pronounce upon the matter unless there is a clear infringement of the law.
A Division Bench of this Court has in Miss. R. Ganesan v. Mr. S.L Khurana 1995 W.L.R. 651 dealt with the scope of the Court''s power 19
issue quo warranto in relation to an office held ''at pleasure'' in the following words:
The writ of quo warranto is issued in the exercise of jurisdiction of the High Court to protect the public from usurpers of public office. Before a writ
of 9110 warranto is issued, it must be established that the holder of the public office against whom such a writ is asked does not have the legal right
to hold that public office. In so far as the present case is concerned, it is not in dispute that the Governor has been duly appointed in accordance
with the provisions of Article 155. He has, therefore, a Constitutional right to hold office under Article 156 of the Constitution, as long as the
President does not withdraw his pleasure. It is also an admitted fact that his eligibility to be a Governor as contemplated by Article 157 has not in
any way ceased. There is no provision in the Constitution of India under which he can be said to have vacated office. There is, therefore no doubt
that as long as the President of India does not withdraw pleasure, he has a right to hold the office of the Governor to which he has been properly
appointed.
A similar view has been expressed by a Full Bench of Kerala High Court in K.C. Chandy Vs. R. Balakrishna Pillai, . It that case, the petition
fix issue of quo warranto was filed on the ground that a public speech made by a Minister in the Kerala Court amounted to breach of oath taken
by him at the time of assuming the office of Minister and, therefore, he had forfeited his right to continue in that office. While holding that oath of
office is not an empty formality and the appointing authority should consider whether there was in fact breach of oath and take appropriate action,
Full bench held that it was not for the Court to embark on any such enquiry. Pointing out the distinction between ""absence of oath"" and ""breach of
oath"", the Full Bench said that if no oath was taken to hold the office and a writ of office, there was no legal title to hold the office and a writ of quo
warranto will naturally issue and on the other hand ''breach of oath'' requires a termination of the tenure of office, which could be brought about
only by the Appointing Authority. The Bench said:
The next question that would naturally arise would be whether a writ of quo warranto would be issued if a Monster is found to have committed
breach of oath. For our limited purpose it might not be necessary to trace the historical background of the writ of 9110 warranto. Suffice it to
examine whether a writ of quo warranto can, issue in respect of an appointment held at the pleasure of the appointing Authority. In one the earliest
cases, Darley v. The Queen 12 C & F. 520 (537), Tindal, C.J. expressed thus:
This proceeding to information in the nature of quo warranto will lie for usurping an office, whether created by charter atone, or by the Crown, with
the consent of Parliament Provided the office be of a public nature, and a substantive office, not merely the function of employment of a deputy or
servant held at the will and pleasure of others, for, with respect to such an employment, the Court certainly will not interfere and the information will
not properly lie.
and proceeded to hold in that case thus:
The functions of the treasurer were clearly of a public nature...and it is equally clear that though appointed by the Magistrate, he is not removable
their pleasure, and not, we> think, be treated not as their servant, but as an independent officer.
This statement of the law was approved in the leading case, R. v. Speyer (1916) 1 KB 595 and it has been cited in all the important cases
relating to 9110 warranto jurisdiction. A writ of quo warranto or a writ by way of information in the nature of quo warranto cannot issue in these
cases when a post is held at pleasure. This is the normal rule. Even in those cases, however the non-fulfilment of the conditions prescribed for
assumption of office or the absence of the required qualification to bold that office affecting the titled that office will give rise to the issuance of this
writ. Once the office is held under a valid tide, and the continuance depends on the pleasure doctrine, the, writ of quo warranto does not run; and
no such writ, which can be defeated immediately by the there exercise of an executive will, will therefore issue.
23-A. The above rulings have been referred to and the principle has been applied by a learned single judge of this Court in Ramachandran v. M.G.
Ramachanaran 1986 W.L.R. 484, in a case similar to the one decided by Kerala High Court.
Thus, it is clear that a quo warranto will not issue with respect to an office held ""at pleasure"", unless there was want of eligibility for
appointment to the office or cesser of eligibility by losing one of the prescribed qualifications or by incurring a prescribed disqualification. In the
absence of anyone of the aforesaid circumstances, the matter will fell outside the scope of judicial review. The Court has no jurisdiction to
investigate the facts, give a finding and issue a consequential direction to the Appointing Authority. The argument that the Court can issue a
Mandamus and thereby compel the Appointing Authority to respect its finding on the facts and remove the Advocate-General from the office held
by him is wholly fallacious. It is in support of the said contention, the judgment Ponnusamy v. State of Tamil Nadu 1995 2 L.W. : AIR 1995 Mad
78 is relied on by the Petitioner. The learned judge has rejected the contention that the writ petition was not maintainable and after referring to
some judgments of the Supreme Court and the High Court including this Court, observed as follows:
Today, we talk of an open Government where information is very well exchanged, so that nothing is done secretly. Therefore, in a case where
serious allegations are made against a high Constitutional office, it is in the interest of everybody to disclose all the informations and have a judicial
quietus over the same. An Advocate-General has a triangualr responsibility. He has at once, the confidence of the Government which appointed
him and necessarily has to protect the interest of the Government. His is the leader of the Bar and has to protect the interest of the entire
congregation of Advocates. He has to assist the Court on very many matters and the Court can call upon him to act as amicus curias in cases
involving intricate questions of law. Even Mr. Venugopal points out that a famous Advocate-General of this Court had once intervened in a case
and told the Court that a particular writ petition deserved admission and thereupon the Court duly admitted the writ petition. When such is the
position, some of the grounds raised in W.M.P. No. 9612 of 1994 are quite disturbing. I wish the allegations contained in the said Miscellaneous
Petition are not true. Since we are proceeding on the basis that even if the allegations are proved, the writ petition is not maintainable, I must refer
to the same. The first allegation relates to the remarks made by the second Respondent against the Judiciary while welcoming the new Chief
Justice. The fact remains that these remarks were directed to be deleted and the second Respondent had tendered an apology. I am not aware of
nor am I deciding the actual manner in which the incident took place, but it cannot be disputed tint such an incident took place. Secondly, there is
an allegation that the second Respondent presented a petition before the Central Government seeking transfer of some of the judges of the High
Court. Again I wish that thus allegation is not true. I am only referring to this allegation to impress upon the parties that if true, the same will
undermine the very relationship between Bar and the Bench. There is so much talk about the Bar and the Bench being the two-sides of the same
coin and the two wheels of the chariot of Justice. Can there be a smooth functioning of the Court if such allegations are left undecided? In the
beginning of my judgment, I have referred to the fact tint the Court can always mould the relief and give appropriate directions. It is well known
that the Court never directs the Government to promote an Officer or to grant a licence. They always direct the Government to consider the chum
for promotion and the claim for the grant of a licence. Therefore, even if the Petitioner makes out a case by establishing the allegations made in the
affidavit, the Court rarely ever directs the first Respondent to remove the second Respondent from office. On this aspect of the case, Learned
Counsel for the second Respondent says that supposing the Government after considering the directions of the Court rejects the request for
removal, can the Court again interfere in the matter? It is a hypothetical question which I do not prefer to answer now. As already stated, each
organ of the Constitution of India respects the other and there is nothing wrong if information is sought form certain allegations, so that it can be
decided with certainty out there is no case for granting any relief or directions under Article 226 of the Constitution of India. In the interest of
everybody, I am clearly of the opinion that it is better to thrash out the allegations one way or the other, so that at the end we will know the final
outcome, instead of trying to run away from the issue under the cloak of maintainability. In this view of the matter, and having regard to the several
recent judgments of the Apex Court, I bold dial the writ petition is maintainable.
It is seen from the above passage that the learned judge has refrained from answering the question posed by the counsel whether the Court can
interfere in the matter if the Government after considering the directions of the Court rejects the tempest for removal from the post of Advocate-
General. The learned judge has characterised the question as a hypothetical one overlooking fact that the question relates to one of tile important
basic requirements to be fulfilled before a Court chooses to exercise its jurisdiction under Article 226 of the Constitution of India. We have already
pointed out that no writ will issue if it could be defeated by the party thereto by acting in accordance with law. The learned judge recognises in the
above passage that the Court cannot direct the Governor or the Government to remove the Advocate-General from his office and the ultimate writ
will be only a Mandamus directing the Government to consider the question of removal of the Advocate-General. If such a writ is issued, it is
certainly open to the Governor to take a different view on the facts and ignore the finding of the Court. It is also open to the Governor in such
cases to declare that even if the finding of Court is correct on the facts he does not find any necessity to withdraw his pleasure, and that be
continues to repose his confidence in the Advocate-General. Thus, the exercise of the Court by investigating into the facts alleged by the Petitioner
and arriving at a particular finding would become waste and futile.
At this stage it is worthwhile referring to a recent judgment of the Supreme Court in Joginder Singh Wasu Vs. State of Punjab, wherein Court
has categorically declared that the relationship between Advocate-General and the Governments that of an advocate and client. Referring to the
provisions of Article 165 of the Constitution and after pointing oat that the office of Advocate-General is an exalted one and he is the supreme Law
Officer of the State with a right to audience before the Legislature of a State under Article 177, that he is treated on par with a Minister and that
any statement or a concession made by him would always be accepted by the Courts, the Supreme Court said:
The relationship between the Advocate-General and the State Government is essentially that of an Advocate and a client in relation to his
appearance in court and arguing the ease before the court on behalf of the State.
Proceeding farther, their Lordships said that the position, of the State vis-a-vis the Advocate-General may be described in the words of William
Shakespeare:
Whose worth is unknown, Although his height be taken.
If that be the position of the Advocate-General, it is entirely within the realm of the State to remove him from the office or continue him. Just
because serious allegations are made against the incumbent of the office, the Court cannot decide upon itself the task of deciding the correctness of
the same. It is for the Government to make an investigation and arrive at a factual finding. The best that can be done by the Court in such cases is
only to direct the Government to consider the allegations made by the Petitioner and take appropriate action. The Court cannot decide upon the
truth or otherwise of the allegations and issue directions on the basis of its findings. In other words, the Court can only do the work of a post-office
in directing Government to decide upon the allegations made by the Petitioner, however serious they may be. Article 226 of the Constitution is not
intended for such purpose. The Court should, therefore, direct the Petitioner to approach the appropriate authority with all his allegations and
request the said authority to consider the same. We have, therefore, no hesitation to hold that the view expressed by the learned judge in
Ponnusamy Vs. State of Tamil Nadu and another, that a writ of Mandamus is maintainable in such cases is not in accordance with law.
In the present case, we have already referred to the fact that the Petitioner had sent a telegram to the Governor containing the same allegations
against the Advocate-General. In reply to the telegram, the Chief Secretary to Government has sent a letter to the Petitioner on 22-2-1995 in the
following terms:
The Government have examined the grounds and contentions put forward by you in your Telegram dated 11.2.1995 in the above Writ Petition and
also the various documents referred to by you. After detailed and careful consideration, the Government see no reason to comply with the demand
made by you. The Government have the fullest confidence in Thiru R. Krishnamoorthy continuing in the office as Advocate-General.
A similar letter has been issued by the Chief Secretary to the Government Pleader to the effect that the second Respondent continues to enjoy the
pleasure of the Government to continue in office at the Advocate-General. Thus, the Government has already considered the allegations made by
the Petitioner as against the second Respondent and come to the conclusion that no case has been made out for removing the second Respondent
from office. In such circumstances, no Mandamus can be issued by this Court as prayed for by the Petitioner.
It is also possible to view the matter from another angle. Under Article 163 of the Constitution of India, there shall be a Council of Ministers
with the Chief Minister at the head to aid and advise the Governor in the exercise of this functions, except in so far as he is required to exercise the
same in his discretion. Article 163(2) reads that the decision of the Governor in his discretion shall be final and the validity of anything done by the
Governor shall not be called in question on the ground that be ought or ought not to have acted in his discretion. The ''pleasure'' of the Governor
referred to in Article 165(3) is entirely within his discretion and it is open to him to withdraw or continue the same. In this case, the Governor has
chosen not to withdraw the pleasure as is evident from the communication issued to the Petitioner by the Chief Secretary to the Government,
referred to above. That decision of the Governor refusing to withdraw his pleasure is a decision within the meaning of Article 163(2) of the
Constitution, which is final. The validity of the said decision has not been and cannot be questioned. On that ground too, the petition is not
maintainable.
In the course of arguments, the Petitioner has contended that the second Respondent has given his age as 64 in his affidavit and he is,
therefore, not qualified to be appointed a judge of a High Court and consequently, the Advocate-General for the State. This contention has not
been raised in the affidavit filed in support of W.P. No. 2505 of 1995. In the affidavit filed in support of W.P. No. 4294 of 1995, a sentence has
been added in ink in paragraph 7 thereof, which reads thus: ""Age of retirement for A.G. is only 60 years according to G.O."". Even in that affidavit,
it is not stated that the second Respondent was not qualified to be appointed as Advocate-General because of his age. Though we can reject this
contention put forward at the time of arguments for the first time on the ground that it has not been raised in the affidavits, there is no necessity for
us to do so, as the position in law has been settled long back. In G.D. Karkare v. T.L. Shevde AIR 1952 Nag 330, a Division Bench of Nagpur
High Court held that the age referred to in Article 217 of the Constitution is not a qualification for appointment of a Judge of the High Court and it
is only a prescription of the duration of appointment and, therefore a person can be appointed as Advocate-General even after he had crossed the
age mentioned in Article 217 of the Constitution. That dictum was approved by the Supreme Court in The Atlas Cycle Industries, Ltd., Sonepat
Vs. Their Workmen, . Rejecting a similar contention urged with reference to the appointment of a Member of the Industrial Tribunal, Punjab, the
Court said:
(13) This question was considered by a Bench of the Punjab High Court in Prabhudayal v. State of Punjab AIR 1950 P&H 460. There the validity
of the appointment of Shri A.N. Gujral under the notification dated 29th August 1953, which is the very point now under debate, was challenged
on the ground that as he was not qualified to be appointed u/s 7(3)(c). The Court held, approving of the decision in G.D. Karkare''s case ILR
(1952) Nag. 409 : AIR 1952 Nag. 330, that the prescription as to age in Article 217(1) was not a qualification to the office of a judge under
Article 217(2) and that a person who was more than sixty was qualified for appointment u/s 7(3)(c).
It is rightly contended by Learned Counsel for the Respondents that the three circumstances mentioned in the affidavit of the Petitioner, which
according to him, have led to the disqualification of the second Respondent, have nothing to do with the qualifications prescribed in the Constitution
for the appointment of Advocate-General and they cannot, therefore, form the basis for the issue of quo warranto or even Mandamus. It is
submitted that if the Court proceeds on the footing that anyone of the circumstances would disqualify the second Respondent from holding the post
of Advocate-General, it would be adding to the prescribed qualifications or disqualifications, which the Court is not entitled to. The Court will be
transgressing its power of judicial review and trespassing upon the field of legislation, if the Court accepts any ground other than that prescribed by
law as would lead to disqualification. In this connection reliance is placed by counsel for the Respondents on the ruling of the Supreme Court in
Chingleput Bottlers Vs. Majestic Bottling Company, We do not think it necessary to elaborate on this aspect of the case. Suffice it to hold that on
the averments contained in the affidavit filed by the Petitioner, the prayer made in the petition is not maintainable.
In this view, we do not think it necessary to refer to the otter contentions urged by Learned Counsel for the Respondents or the rulings cited by
them. Nor do we consider it necessary to discuss the merits of the case regarding the allegations that a learned single judge of this Court has
passed a stricture against the second Respondent in a probate proceeding and that the second Respondent has recommended for the designation
of a junior member of the Bar as Senior Advocate overlooking that he did not have the requisite standing at the Bar. We have to, however, place
on record the admission made by the Petitioner that there is no Rule prescribing that an advocate should be a member of the Bar for 15 years in
order to be designated as Senior Advocate, as alleged by him in the affidavit. It is also not disputed that the judgment of the learned single judge in
the probate proceedings referred to by the Petitioner in his affidavit has been set aside by a Division Bench and as directed by, the Supreme Court,
the proceeding has been converted into a Testamentary Original Suit, which is still pending on the file of this Court. It follows that W.P. No. 2505
of 1995 has to be dismissed as not maintainable.
The position is the same in the case of W.P. No. 4294 of 1995. The only ground urged in the affidavit is that the Advocate-General has
violated tile conditions imposed in G.O. Ms. No. 607, Public, dated 28th March, 1981, by being a Director in several private limited companies. It
is not even alleged by the Petitioner that the Advocate-General has not obtained the sanction of the Government to be appointed as such Director.
In the absence of such an allegation, it is not known how the Petitioner contends that the Advocate General has violated the conditions imposed in
the G.O. The Petitioner has not also chosen to mention the name of even one company in winch the Advocate-General remains to be a Director.
The Petitioner has set himself on a fishing expedition as evident from the averment in paragraph 8 of the affidavit that the information can be
gathered from the files of the 4th Respondent, viz., the Registrar of Companies and if ft is found that the fifth Respondent (Advocate-General) is
Director of any of the companies, he has incurred the liability to be removed from office. No writ can be issued by any Court on such vague
allegations in the affidavit. Even if the averments in the affidavit are accepted to be true, no case is made out for issue of a writ.
The G.O. does not appear to be issued under any statute. It is not even urged by the Petitioner that the, instructions contained in the G.O. have
the status of statutory Rules. The instructions do not also have any bearing on tile qualification of the Advocate-General. There is nothing in the
G.O. to show that if any of the instructions is violated, the Advocate General would incur a disqualification thereby to hold the office.
In Alex Beets Vs. M.A. Urmese and Another, , a Division Bench of the Kerala High Court held that Writ of quo warranto cannot be sustained
on the ground of violation of Rules not having the force of law. The Bench observed:
It is obvious that the Rules in question, which are not traced to any statute bat only to the executive power under Article 162 of Constitution,
cannot be regarded as laws or to have the force of law. The allegation that the Respondent''s appointment is in contravention of Rules having force
of law has therefore to be overruled.
If the Rules have no force of law and are only administrative instructions, their violation will not sustain a writ motion under Article 226 of the
Constitution.
In the circumstances, there is no justification for admitting W.P. No. 4294 of 1995 and issuing a rule nisi. That petition is also not maintainable.
Turning to Writ Petition No. 5854 of 1995, we find that all the allegations contained in the affidavit relate to the acts and deeds of the second
Respondent as an executor of the will of Mrs. Padmini Chandrasekaran and as trustee of M/s. N. Selvarajulu Chetty Trust. No doubt serious
allegations have been made that the second Respondent is guilty of misappropriation of trust property and breach of trust etc. But the correctness
or otherwise of the allegations cannot be decided in a petition under Article 226 of the Constitution. It is a disputed question of net on which
voluminous evidence may be required before a finding is given. Learned senior counsel for the second Respondent has drawn our attention to the
following passage in ""Shorter Constitution of India"" by Durga Das Basu, 11th Edition, at page 569:
Whether disputed facts can be investigated in a proceeding under Article 226.
(A) Where fundamental rights are not affected.
One of the the grounds against the exercise of the discretion, in such cases, would be tint the right claimed by the Petitioner is not capable of
being established in the summary proceeding under Article 226 because it requires a detailed examination of the evidence as may be had in a suit.
The object of Article 226 is the enforcement and not the establishment of a right, or title. A petition under Article 226 cannot be converted into a
suit.
The principle has been extended even to mixed questions of fact and law.
In general, therefore, a disputed question of fact is not investigated in a proceeding under Article 226, particularly when an alternative remedy is
available, e.g.,--
(a) the merits of rival claims to property, or a disputed question of tide;
(b) whether a person is a ''foreigner'' within the meaning of the Foreigners Act, 1946, whether the Petitioner was casual labourer or not;
(c) claims arising out of breach of contract or tort;
(d) whether the determination is that of an expert body, in the absence of mala fides;
(e) where the Petition rests on allegations of malice in fact.
Admittedly, in this case the proceedings relating to the validity of the will of Mrs. Padmini Chandrasekaran which are pending in this Court in
T.O.S. No. 28 of the 1982 and C.S. No. 149 of 1980. The Petitioner in the writ petition claims to be a son of one of the trustees of M/s. N.
Selvarajulu Chetty Turst. It is quite obvious that he has been set up by his father to file this writ petition to fight against a co-trustee.
It is also admitted by the Petitioner''s counsel that a petition has been presented on the original Side of this Court u/s 92 of the CPC in which all
the allegations made against the second Respondent in its writ petition have been set out in detail. In our opinion, the question raised by the
Petitioner can be decided only in such a proceeding and not under Article 226 of the Constitution.
It is significant to note that in paragraph 35 of the affidavit of the Petitioner, it is stated that this is an important issue involving larger public
interest and this Court may order investigation by independent agency and render a finding based on such report. It is very strange that the
Petitioner, who has already approached this Court on the original side u/s 92 of the CPC S.R. No. 12401/95 for an investigation into his
allegations and for framing a scheme should file this writ petition and request the Court to conduct the investigation by an independent agency. If
the averment of the Petitioner means that he has no confidence in this Court for the purpose of investigating the correctness of his allegations, that is
sufficient to throw out this writ petition as not maintainable. The Petitioner cannot in one bream say that he has no confidence in this Court while
exercising its jurisdiction on the Original Side and at the same time invoke the extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India. Obviously, the Petitioner has not realised the implication of his aforesaid statement in paragraph 35 of the affidavit.
The allegations made in the affidavit with reference to W.P. No. 5221 of 1995 in which the Petitioner therein was represented by the counsel
who are now appearing for the second Respondent in W.P. No. 2505 of 1995, have no substance whatever and it would be a waste of time for
this Court to consider the same. Thus, on the averments made in the affidavit filed in support of W.P. No. 5854 of 1995, that writ petition is also
not maintainable and has to be dismissed in limine.
In the result, all the three Writ Petitions viz., W.P. No. 2505 of 1995, W.P. No. 4294 of 1995 and W.P. No. 5854 of 1995 are dismissed.
W.M.P. Nos. 6574 of 1995, 7463 of 1995 and 7464 of 1995 are also dismissed.
In W.P. No. 2505 of 1995 we are awarding costs in favour of the second Respondent for the following reasons:
The prayer in the petition is one for mandamus. The general rule of ""demand and refusal"" will apply. The Petitioner having sent a telegram to the
concerned authorities on 11-2-1995 ought to have waited for a reasonable time for a reply, without doing so filed the petition on 16-2-1995. As
soon as the Respondents entered appearance they filed, counter affidavits and the Governor''s statement on which the Petitioner has built up his
case has been clarified. Yet the Petitioner prosecuted the petition with undue obstinacy and at the same time adopted an obstructive attitude in
Court and prevented the teamed stogie judge from disposing of the matter in the usual course of business as in evident from the order dated 3-4-
1995. Though the Petitioner has claimed that he has no axe to grind in this matter, from the way in which the case has been conducted, we get an
impression that this is not a bona fide Public Interest Litigation. The Supreme Court in Shri Sachidanand Pandey and Another Vs. The State of
West Bengal and Others, took note of the fact that public spirited litigants rush to Courts to file cases in profusion under the attractive name but
added that they must inspire confidence in Courts and among public and they must be above suspicions.
In Janata Dal Vs. H.S. Chowdhary and Others, the Supreme Court ruled that a vexatious petition-trader the colour of PIL brought before the
Court for vindicating any personal grievance deserves rejection at the threshold. The Court went on to say:
It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wanted which time
otherwise could have been spent for the disposal of cases of the genuine litigants. Though we are second to none in fostering and developing the
newly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental
rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that
while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases
in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for
long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein
huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the detention order
etc. etc. are all stating in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the
busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private
profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their feces
by wearing the mask of public interest litigation, and get into the Courts by filing vexations and frivoluous petitions and thus criminally waste the
valuable time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates
a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system.
We have no hesitation to say that this is a vexatious litigation which has not only harassed the second Respondent and caused mental agony to
him but also wasted the valuable time of this Court when thousands of poor litigants are waiting for years to get their grievances redressed. The
Petitioner who is a practising advocate should know better and have thought twice before filing this petition. He could well have spent his time to
help some poor litigants instead of indulging in this wasteful litigation. We are sorry to say that today most of the Public Interest Litigations are only
publicity litigations. In the circumstances, we direct the Petitioner in W.P. No. 2505 of 1995 to pay the costs of the second Respondent therein.
Counsel''s fee Rs. 2000/- (Rupees Two Thousand Only).