1. By a notification dated 22-6-1960 and bearing S. R. O. No. A. 4436 of 1960 issued in the Public Department, the Government of Madras appointed Mr. Alagiriswami, to be Government Pleader with effect from 1-7-1960 on his retirement from the Madras State Higher Judicial Service". In the present petition the validity of this appointment is questioned.
2. Mr. Alagiriswami, the first respondent, was enrolled as an advocate of this Court on 16-3-1936. Some five and the three-quarter years later, that is to say, on 3-12-1941, he was appointed as District Munsif and served in that capacity in different places till 5-4-1947. In that year he was appointed as Private Secretary to the then Chief Minister of Madras, which position he held till 1950. Between 1950 and 1953 he underwent training as Legal Draftsman in New Delhi. On the termination of his training he was appointed as Secretary to the Trade Marks Committee and thereafter as Special Officer for the Revision of the Trade Marks Act.
On his relinquishment of that office he was appointed as Joint Secretary to the Government in the Legal Department and subsequently he was promoted as Secretary in that Department. That post he continued to hold till 1959. In July, 1959 he was appointed Principal Judge of the City Civil Court, Madras. In February, 1960 the then Government Pleader was appointed to be a Judge of this Court and the post of Government Pleader thus became vacant. That post continued to be vacant till 1-7-1960 when in pursuance of the order now challenged, Mr. Alagiriswami assumed the duties of that office.
3. In support of his petition Mr. Ramachandran, filed an affidavit, the main points of which are these :
1. The post of Government Pleader is a Public Office.
2. Appointments to that post have to be made in conformity with the Standing Orders on the subject. According to those orders no person can be appointed as a Government Pleader unless he is either an advocate or has held certain civil judicial or quasi-judicial posts for a period of five years. These posts include that of a Subordinate Judge, the Chief Presidency Magistrate, Madras, a Judge of the City Civil Court, Madras, a Puisne Judge of the Court of Small Causes, Madras, the Administrator General and Official Trustee, Madras. A District and Sessions Judge, who is not a member of the Indian Civil Service, would also be eligible. Mr. Alagiriswami was not qualified for appointment under these Rules.
3. From 1920 onwards the post of Government Pleader has been filled from practising advocates of the Madras Bar and every one of those persons had a considerable volimie of work at the Bar, and, because of their qualifications as lawyers, and every one of them -- barring two exceptions --was in his turn appointed as a Judge of this Court.
4. In 1959 Mr. Alagiriswami's name was sent up for appointment as a High Court Judge, but was rejected on the ground that he lacked judicial experience. It was only thereafter that he was appointed as Principal Judge of the City Civil Court.
4. I now quote from paragraph 12 of the affidavit.
"I believe that the present, appointment is Mala fide for the reason that it is an encroachment on the rights and privileges of the Bar and a departure from established convention. I apprehend it has been made out of considerations extraneous and personal, to further the chances of the first respondent to the High Court Bench and seeking to appoint him as Government Pleader on the basis of an outmoded G. O."
5. On behalf of the Government a Counter was filed in which the following contentions were taken:
1. "The Government Pleadership is not an office at all and much less a public Office." The Government Pleader is only an advocate of the Government, but instead of making an appointment in each case, he is appointed generally for ail the purposes of the Government. He is only a recognised agent of the Government for conducting their cases.
2. "There are no duties attached to the Government Pleadership, much less duties of a public nature".
3. "The Standing Orders relating to appointments of Law Officers are administrative instructions and are not justiciable ............ Being administrative orders they can be explicitly or impliedly modified or departed from in any individual case. These instructions do not confer rights on third parties for enforcing compliance."
4. On 1-7-1960, the date on which the Order of Government took effect, Mr. Alagiriswami was an Advocate of this Court and was fully qualified to be appointed. The present is not a case of appointment by transfer.
5. The other matters mentioned in the affidavit of Sri A. Ramachandran are matters of prejudice and are not matters relevant to the adjudication of the question to be decided in this Writ Petition."
6. "Government acted in what they conceived to be their own best interests in making the appointment."
6. Mr. Ramachandran filed a reply affidavit, and, it covers wider grounds. He began by pointing out that Mr. Alagiriswami himself had not filed any counter affidavit and that the counter which had been actually filed on behalf of the respondents had been sworn to by an officer who was on leave at the time the appointment in question was made, the suggestion being that it could not have been based on personal knowledge. The averment that on 1-7-1960 Mr. Alagiriswami was duly qualified by reason of the fact that on that date he became a member of the Bar is an afterthought and opposed to the facts of the case. On 12-7-1960 certain members of the Madras High Court Advocates' Association met Mr. Subramaniam, the Law Minister, in connection with this appointment, and at that time, the stand which Mr. Subramaniam took was
"that the Government had acted on G.O. 2962 dated August 10, 1932, a reading of which would show that there was no bar to the appointment of a Judicial Officer to a Law Office,"
Mr. Subramaniam further said that
"The Government felt that Mr. Alagiriswami, in view of his special knowledge through prolonged secretarial experience of the peculiar difficulties of the Government, was the most competent person to fill the post, and added that the Government Pleader was after all the Government's representative ......... He "personally knew Mr. Alagmswami, and according to him, he would make an excellent Government Pleader and he had confidence in his ability, as he had worked in the Secretariat for five years as Law Secretary."
The Members of the Association pressed the law Minister further on this point and asked him whether
"In view of the fact that the Government considered such secretarial knowledge as an essential prerequisite and qualification for the post of a Government Pleader, .... ..... the Government would consider keeping Mr. Alagiriswami as Government Pleader for the full term till he reached sixty years, and not appoint him to thc post of High Court Judge as, in the latter case, the Government would lose a representative of outstanding ability."
To this the Minister gave the reply that the question was improper and that the deputation was wrong if it thought that Mr. Alagiriswami had been put in as Government Pleader with the object of his being finally elevated to the Bench. The Association asked Mr. Subramaniam why the previous practice which had held for some 28 years was departed from. He then replied that the Government felt that the necessity had arisen in view "of the lack of special knowledge of secretarial work in the practising lawyers." The affidavit then went on to refer to a clarification which Mr. Subramaniam the Law Minister, had made to the press, Wherein he, had explained.
"Another thing left out in the version given by the educationists is this. It looks from the report as if I insisted that because of "the particular officer's secretarial experience alone, he has been appointed as Government Pleader. The first thins considered in his legal knowledge as Judicial Officer and as Law Secretary, Secondly, in addition to it he has got the advantage of experience of dealing with Government matters and secretariat administration. Both these points together were taken into consideration in making the appointment."
7. The Government did not content themselves merely with appointing Mr. Alagiriswami to be a Government Pleader. On 4-7-1960 they passed a special G. O. to enable him to draw pension on the invalid scale, a pension which he could not have drawn but for the G. O. The affidavit then commented on the omission of Mr. Subramaniam to file an affidavit himself. It then incorporated the purport of an interview which a representative of the Bar Association had with the Chief Minister. In paragraph 7 the following categorical assertions were made;
"I believe that the appointment has been made out of personal consideration of a person connected with, the executive in whom the Hon'ble Minister was interested with the object of routing him through the Bar to the High Court Bench to give him an advantage over senior members of the Higher State Judicial Service and members of the Bar, whose claims otherwise could not be overlooked, and as such the appointment of a person like the first respondent, who was neither a "Judicial Officer" nor a "Member of the Bar" is Mala fide and made out of interested motives. I state the second respondent now having realised that the G. O. on the basis of which they had made the appointment cannot help them to sustain it have taken refuge in the plea that the said G. O. is not justiciable and are relying on their arbitrary Right to appoint their nominee to a Public Office like the Government Pleader. In respect of a public office on the absence of Rules, the Government has to appoint a competent person, having regard to established conventions, and no arbitrary power can be exercised. Such an appointment of any person, like the member of the executive to a post of Law Officer with the ultimate object of elevating him to the Bench, will be an interference by the Executive in the Judiciary, contrary to Directive Principles of State Policy envisaged in the Constitution and adopted by the Madras legislature. I state that it would be Mala fide exercise of power in respect of appointment to a public office which has been statutorily recognised in the Civil Procedure Code."
8. Then Government could have appointed a Government Pleader only from active practitioners at the Bar. Mr. Alagiriswami was not a member of the Bar within the meaning of G. O. 2962/32, which is applicable to the case. On 1st July, 1960 Mr. Alagiriswami had not a single private brief which would entitle him to be called a practising advocate, The Office of Government Pleader is a public office and the Government Pleader is a Public Officer within the meaning of the Civil Procedure Code. The affidavit then narrates various considerations which, according to the deponent of the affidavit, would make the office of the Government Pleader, Madras a Public Office.
9. When at an earlier stage this petition came en for hearing before Ganapathia Pillai, J., an application was taken out to implead in the present proceeding both the Bar Association Madras and the Advocates' Association, Madras. The learned Judge considered that it was not necessary to implead them as parties and that it would be sufficient to direct that notice should go to them. Accordingly, notices were issued to both the Associations and they entered appearance and they were heard in the present proceedings.
10. On 10-8-1960 Mr. Chellaswami, a Barriseter-at-Law and a member of the committee of the Bar Association, High Court Madras filed an affidavit to the effect that on 7-7-1960 he met the Chief Minister as the sole delegate of the Bar Association and then told him of the strong feelings of the Bar in the matter of the present appointment. At that interview the Chief Minister said among other things.
"...... ...... that when the question of appointment was raised by the Law Minister, he asked him to summon the Advocate General and consult him. He made it clear that the appointment was made in consultation and with the concurrence of the Advocate General. He said that before it was finally decided, be asked the Chief Secretary to advise Mr. Alagiriswami not to take up this post as he felt that it would not do him any good. But he was keen to accept the new post notwithstanding the advice tendered by the Chief Secretary. He pointed out that as a matter of principle and policy, he always made it a point to have the Advocate General's advice in the matter of appointment of Law Officers. He expressed the view that although the Advocate General is to be blamed he did not wish to shift the blame and that he would like to accept the constitutional responsibility for the decision taken."
The Chief Minister did not file any affidavit in respect of these allegations, but the learned Additional Government Pleader mentioned that he had been instructed to say that
"the statements contained in the report of Mr. Chellaswami are not completely correct"
It would have been more helpful if the Court had been told in what respect the report of Mr. Chellaswami was incorrect. But, since this was not done, one is entitled to presume that the report is substantially accurate.
11. On 11-8-1960 the petitioner took out a notice calling upon the State of Madras, viz. the second respondent
"to admit for the purpose of this petition only, the several facts respectively hereunder specified before the closing of the hearing of the above writ Petition."
The several facts referred to in the notice relate to the interview which Mr. Subramaniam, the Law Minister, gave to certain representatives of the Press on 12-7-1960 and the purport of which had been incorporated in the reply affidavit of Mr. Ramachandran. In compliance with this notice Mr. Subramaniam filed an affidavit in paragraph of which he admitted,
"the reports of the interview with me and my press statement are substantially correct"
He also admitted in paragraph 5 that
"the statements in paragraphs 6 and 7 of the Chief Secretary's affidavit filed in this case were approved by me and represented the correct position."
Paragraph 6 runs as follows:
"I categorically deny that any matter other than the fitness and suitability of Sri A. Alagiriswami for the Government Pleadership was considered or was at all in my mind or that of the Chief Minister or Home Minister."
12. It will be recalled that one of the allegations which Mr. Ramachandran had made in his first affidavit was that he believed that in 1959 the name of Mr. Alagiriswami was sent up for appointment as a High Court Judge but had been rejected on the ground that he lacked Judicial experience; in respect of this allegation Mr. Subramaniam stated in paragraph 8 of his affidavit as follows:
"I am not in a position to disclose any matter relating to the proposals or consultations for appointment of a High Court Judge. Under Article 217(1) of the Indian Constitution the President makes such appointments in consultation with the Chief Justice of India, the Governor of the State and Chief Justice of the High Court. Their consultations are confidential and no Minister or other officer can disclose details thereof."
13. Dealing with the further allegation that Mr. Alagiriswami had been appointed as a Government Pleader in order to facilitate his chances of promotion as a High Court Judge, Mr. Subramaniam stated in paragraph 9 as follows;
"As already stated the appointment of Sri. Alagiriswami as Government Pleader was and is intended for his being Government Pleader acting as such onbehalf of the Government and for no other reason. With regard to the allegation that it it intended as a step to make him a High Court Judge all that we can say is that was not in consideration of in Our mind at all. Neither I nor any other person can make any statement with regard to what the President may be doing at a future date with reference to any appointment to any High Court."
13-A.. Mr. Vasantha Pal for the Relator argued the matter very elaborately and the main propositions he sought to establish may be thus summarised.
1. The Writ of Quo Warranto is available in respect of any one who claims to hold an office of a public nature.
2. The post of Government Pleader, Madras Js an office of a public nature.
3. The appointment of Mr. Alagiriswami was for contravention of the Rules pertaining to the appointment of Government Pleader.
4. In making the appointment complained of Government were acting in a mala fide manner. They were actuated by an ulterior and collateral motive wholly foreign to the lawful exercise of the powers vested in them. It was a colourable exercise of power and a fraud on it.
5. In such circumstances, the appointment is liable to be set aside.
6. This is especially so as the Rules in pursuance of which Government were bound to act are statutory rules.
7. Even otherwise, Government were bound to follow the Rules they had laid down for then own conduct.
14. The first of these propositions it too well established to need citation of much authority. The position is thus explained in Volume 44, American Jurisprudence, pages 100 and 101.
"Quo warranto is generally regarded as an appropriate and adequate remedy to determine the right or title to a public office and to oust an incumbent who has unlawfully usurped or intruded into such office or is unlawfully holding the same ..... ....... A proceeding in quo warranto against a public officer is for the purpose of determining whether he is entitled to hold tie office and discharge its function. .... ... .Quo warranty unless enlarged by statute to cover private offices, is confined to testing the right or title to public office of a Civil character ....... ...."
The leading English case on the subject is that of Darley v. Reg, 1846-8 ER 1513. The head note to that decision reads as follows:
"A proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by Charter of the Crown alone, or by the Crown with the consent of Parliament, provided the Office be of a public nature and a substantive office and not merely the function or employment of a deputy or servant held at the will and pleasure of others.
The office of Treasurer of the public money of the County of the City of Dublin is an Office for which an information in the nature of a quo warranto will lie,"
The report shows that the Lord Chief Justice Tindal expressed himself in these terms:
"That an information of this nature will lie for offices granted by charter, is a matter beyond dispute; and the authorities are numerous that the same remedy is available against intruders into offices of a public nature, which are supposed to be immediately or mediately derived from the Crown, and existing at common law, though of a very subordinate character.
On whatever ground these two last cases were decided, we cannot consider them as authorities to establish the position that a quo warranto information will not lie for usurping an office qreaied by act of Parliament, when that office is clearly of a public nature. And after the consideration of all the cases and dicta on this subject, the result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, 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 or 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. .... .....
There are then only two questions in respect to this office. Was it public? and was the treasurer a mere servant of the Dublin Magistrates?"
Lord Brougham agreed in the view that had been expressed by the Lord Chief Justice:
"It must be considered, however, that this judgment is confined entirely to offices of ,a public nature and so far of a public nature that they must be of a substantive nature, and that they are independent in their title. Within both those descriptions the present office appears to come, and I do not think it necessary now-a-days to show, that because a quo warranto was formerly only held to lie where there was an usurpation of franchise, or of a royal franchise or of a matter proceeding from the prerogative of the Crown, therefore, an information in the nature of a quo warranty which, generally speaking, follows the same rule, is to be confined within the same strict rules. I think if you take the whole weight of the authorities the balance is much in favour of the extension, which, this appears to be beyond that limit. I, therefore, agree with my noble and learned friend, that your Lordships will do well to give judgment for the defendant in error in this case.
15. In Rex v. Speyer, Rex v. Cassel, 1916-1 KB 595 it was held that an information in the nature of a quo warranto will lie at the instance of a private relator against a member of the Privy Council whose appointment was alleged to be invalid. There is only one passage in the judgment which need be extracted here, and that appears on page 611:
"The fourth ground is that the office is not of a permanent nature, but is held at pleasure. I have found it difficult to understand why in principle an office held at pleasure should not equally with an office of a permanent character be the subject of this remedy, provided the office he of a public and substantive character, particularly as an office held at pleasure is often in effect of a permanent character. After considering the authorities since (1846) 8 ER 1513 : 12 Cl and Fin 520 it appears to me that they rest upon the principle formulated in that case and are only the application of it to the particular facts. Tindal C. J. when using the language under consideration, was contrasting the substantive office that is, the office of an independent character, with the employment of a deputy or mere servant."
16. In the Queen v. Guardians of St. Martin's in the Fields (1851) 117 E. R. 1238 it was decided,
"Quo warranty lies for an office, though not immediately derived from the Crown, if it he so mediately (as where commissioners are empowered by Act of Parliament to direct that such office be created.)"
17. On the second proposition of Mr. Vasantha Pai a large number of authorities were read before us by both sides; but if any one thing emerges from a study of the books and decisions, it is this. While it is possible to say in a particular case whether an office is a public office or not, it is not practicable to formulate a definition that will comprehend all cases partly because no particular feature is absolutely decisive. We have to take into account all the features that appertain to the office and thereafter proceed to a conclusion.
18. Certain features of the post we are now concerned with are unmistakably plain.
1. The appointment to the post of Government Pleader is made by the State Government.
2. He is paid a salary which is voted by the Legislature (vide page 872 of the Demand for Grants, 1960-81) and it comes out of public funds.
3. The fees he receives in addition to his salary also come out of the public exchequer.
4. He is the head of an office staffed by persons who are indubitably government servants. He points even the Manager of that office and he has a large measure of disciplinary authority over them. (See pages 373 and 405 of Volume III of Madras Services Manual). It is very unusual for powers of this kind to be conferred on persons who are not holders of public office.
5. Though in the counter filed on behalf of the Government it is stated that the appointment of a Government Pleader amounts only to the "appointment of an advocate to conduct cases on behalf of the Government generally instead of specifically in each case" and "with regard to each case he is regarded as the recognised agent of the Government for conducting it" thereby suggesting that the Government Pleader is only a deputy or mouth piece of the Government, his duties are actually very much larger. The G. O. concerned enumerates his duties under twenty-four sub-paragraphs. These duties are certainly not those of a mere deputy or a messenger or a courier of the Government.
6. The public are in a very large measure interested in the manner in which he discharged his duties, and, he may be properly said to be a person employed in connection with the affairs of the State. Though no individual member of the public may be directly affected by or interested in the manner in which the Government Pleader performs his duties, the public as a whole are, because if he mishandles his briefs there would be loss of money to the public exchequer which in the last resort has to be made good by the tax payer.
7. In the Rules framed under the earlier Government of India Acts the Government Pleader is classified as the holder of a "special post". In spite of the repeal of the Government of India Acts of 1919 and 1935 the character of the post has not altered in any material way during these years.
8. It is a post the existence of which is taken cognizance by the Civil Procedure Code which proceeds to confer on him certain duties.
9. The Bar Councils Act, 1926 places certain duties on the Advocate-General. Section 2(1)(b) of the Act defines "Advocate-General" as including a Government Advocate "where there is no Advocate-General". Prima facie, therefore, one would be justified in saying that the existence of the office of Government Advocate which is the same as Government Pleader, is taken notice of by the Bar Councils Act.
The learned Advocate-General explained here that formerly there were Advocate-Generals only in the provinces of Madras, Bombay and Calcutta: and, that the definition in Section 2(1)(b) of the Act is phrased in the manner in which it appears in order to take in the other provinces also. That may be so. None-the-less, as the words of the statute stand, they are capable of a much wider application and the Government Pleader would be entitled to act in the place of the Advocate-General, when for any reason that post happens to be vacant, as for example, when an Advocate-General has resigned and there has been delay in filling up the vacancy.
10. It is a post which has been excluded from the purview of the Public Services Commission. On page 13 of Volume 1, Madras Service Manual, Law Officers in the City and Mufassal ate shown in the annexure which enumerates "posts In respect of which it shall not be necessary for the Commission to be consulted in the matter of recruitment, appointment, promotion and transfer.'' If the Government Pleader were not the holder of a public post, a provision of this kind would be unintelligible.
19. The authorities make it plain that in circumstances like these the holder of the office would be the holder of a public office. There is an interesting article by Winfield on pages 463 to 478 of Volume LXI of the Law Quarterly Review. On page 464 the learned author poses the question, what is a "Public" Office? and proceeds,
"Setting aside statutory definitions of interpretations thereof, two judicial explanations are as follows;
In 1828, Best C. J. described a Public Officer as "every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or othewise.'' In 1914, Lawrence, J. said; "A public officer is an officer who discharges any duty in the discharge of which the public are interested, more clearly so if he is paid out of a fund provided by the public." Best C. J. lays too much emphasis on remuneration of some sort, for some public officers discharge their duties gratuitously; e. g. the Lord Lieutenant of a county or a Justice of the Peace; and both definitions use the very word which they purport to explain. However, the chief characteristics of a public office seem to be that it is a post the occupation of which involves the discharge of duties towards the community or some section of it and that usually those duties are connected with Government, whether central or local."
The author repeats these views in his text book or the Law of Tort, on page 614 of the third edition; "The chief characteristics of a 'Public Office' (apart from any statutory definition) are that it is a post the occupation of which involves the discharge of duties towards the community or some section of it, whether the occupier of the post is or is not remunerated".
20. The following passage from page 427 of Volume IV Burrows is also of interest :
"To make the office a public office, the pay must come out of national and not out of local funds, and the office must be public in the strict sense of that term. It is not enough that the due discharge of the duties of the office should be for the public benefit in a secondary and remote sense". "A public office includes the holding of a commission in the Territorial Army, or in any other of the armed forces of the Crown".
21. Reference may also be made to the passage on pages 146 and 147 of Volume 11 of Halsbury's Laws of England, Simonds edition.
"The duties of the office must be of a public nature. Thus, an information lay against a privy councillor, because, membership of the Privy Council constitutes the holding of an office of a public nature.
An information in the nature of a quo warranto was held to lie in respect of an elected vestryman; a county treasurer in Ireland; and, apparently, a Superintendent registrar of births, marriages and deaths. The following (inter alia) are offices in respect of which there have been quo warranto proceedings, although the question whether or not an information in the nature of a quo warranto would lie was not discussed in some of them:--recorder of a borough; freeman of a borough; burges; bailiff of a borough; constable; mayor; alderman; town councillor; coroner of a borough; coroner of a county; justice of the peace; sheriff; chief constable; clerk of the peace; judge of a county court; high bailiff of a county court; master of a city company; member of the General Medical Council. On the other hand an information did not lie in respect of the post of treasurer to a district council which acted as rural sanitary authority pursuant to the Local Government Act, 1894, because the duties of such an office were not of that public and substantive nature required to support a quo warranto. Similarly, an information was refused in respect of the office of master of a hospital and free school, which institution was a private charitable foundation, the right of appointment to officers in which was In Governors who were private and not public functionaries; it was immaterial that a charter of incorporation for the institution had been obtained from the Crown".
22. The headnote to (1851) 117 ER 1238 was quoted earlier in this judgment. On page 1242 there is a passage that is relevant at this stage :
"Here the office (the office of the clerk to the guardians of the poor) is held as under a statute, the Commissioners being empowered by statute to order its creation; it has express duties prescribed; and the tenure is during good behaviour; for, although, under the Commissioner's order of December, 1847, the Officer is to hold only until he be removed, the removal must be on some grounds. Then, is the office of a public nature? We must look to the functions, and compare them with those which were held to constitute such an office in (1846) 12 Cl and Fin 520. The House of Lords laid down no criterion in that case; but they held that the office there in question was public within the rule they laid down; and I think the present office is not distinguishable. Whether the district for which it is exercised be a parish, or a hundred, or several parishes in a union, appears to me to form no ground of distinction, if it be an office in which the public have an interest".
23. In the matter of, G. A. Natesan, ILR 40 Mad 125 : (AIR 1918 Mad 763) it was held that the Syndicate of the Madras University was a statutory body of persons holding a "public office" within the meaning of Section 45 of the Specific Relief Act though no emoluments were attached to that office. "Where a statute appoints a body of persons to carry out purposes of public benefit the persons constituting such a body ipso facto become holders of a "public office" (See headnote at page 126 of ILR Mad)). On pages 160 and 161 (of ILR Mad) : (at p. 778 of AIR) there is a paragraph germane to the present discussion :
"It is argued by the Advocate General that the definition in the Civil Procedure Code affords a valuable guide in construing Section 45 of the Specific Relief Act and that one important test would be whether the person holding a public office receives any emoluments. Reference was also made to Henley v. Mayor of Lyme, 1828) 5 Bing 91 where Best, C. J., was of opinion that every one who was appointed to discharge a public duty and received compensation In whatever shape whether from the Crown or otherwise was a public officer. This definition is not exhaustive. Courts in England have issued a mandamus against poor law guardians, town councillors, churchwardens and other purely honorary public officers. There is, so far as I can see, nothing to prevent a person from undertaking public duties without receipt of emoluments. The test is not whether a man receives any emoluments, but the nature of acts to perform which he is appointed or which be is legally liable to perform. Neither the Civil Procedure Code nor the Indian Penal Code are in pari materia with the Specific Relief Act and I do not think the definition there given for certain specific purposes in connection with the provisions of those Codes can be taken as a general and authoritative definition of the term "public servant".
24. In Bansi Lal v. Mohammed Hafiz, AIR 1939 Pat 77 a Bench of the Patna High Court observed :
"Conduct of a suit on behalf of the Government for the recovery of the public money is performing a public duty which an advocate undertakes. Civil suits by the Government or against the Government are public suits though with some exception the procedure of trial is the same as of suits between two private individuals. Government property is public property and recovering it is in the interest of the public and it is the duly of the Government to recover it from those who are not entitled to retain it. A lawyer engaged by the Government to represent it before a Court performs a public duty when he does so. When a Government enforces a claim or refutes a claim, it does so on behalf of the public as the Government is a public institution".
25. In Emperor v. Karamchand, AIR 1943 Lah 255 it was held that a head clerk in the supply depot whose duty was to put up bills to his officer was a public officer within the meaning of Section 21 of the Indian Penal Code.
26. In G. D. Karkare v. T. L. Shevde, AIR 1952 Nag 330 it was pointed out at page 335, "that the office of the Advocate-General is of a public nature admits of no doubt. The incumbent of that office performs duties under various statutes, not the least Important of which relate to public charities and public nuisances".
27. In Pirthwinath v. State of U.P., the petitioner was the Additional Government Advocate in the High Court of Allahabad, One of the learned Judges held that the petitioner was a State servant holding a civil post. The other judge observed that for certain purposes the law officer was considered to be a Government servant, and, that the petitioner was the holder of a civil post within the meaning of Article 311 of the Constitution of India.
28. The learned Advocate General pointed out that there is some inconsistency in the reasoning in this judgment. Assuming that the criticism is sound the fact still remains that the learned Judges did reach the conclusion they did.
29. On the other side, the learned Advocate General referred to Reg. v. Ramajirao Jivbajirao 12 Bom HC 1. That was a case in which the court had to consider what the word 'Officer' used in Clause 9 of Section 21 of the Indian Penal Code meant. And they said :
"We must, therefore, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, who is a Government Officer. Seeking the help of English law, we find, in Bacon's Abridgment at Vol. 6, p. 2, the article headed "of the nature of an officer, and the several kinds of officers", commencing thus: "It is said that the word "officium" principally implies a duty, and, in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer". And the next paragraph goes on to say : "There is a difference between an office and an employment, every office being an employment; but there arc employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, etc.; which differ widely from that of steward of a manor, etc. The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers, or who is appointed to represent the State in its relations to individual subjects. This is the central idea; and applying it to the clause which we have to construe, we think that the word "officer" there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of some one who is so armed".
30. The learned Advocate-General also referred to Charters on Public Office, pages 1 and 2.
31. It may be observed in respect of both these citations that the ideas expressed in them are definitely out of date; they belong to a time when the principal functions of the State were those of tax-collector and policemen. That is not so anymore and old ideas on the subject have therefore to be revised. Nobody will seriously controvert that the Superintendent, General Hospital, Madras is the holder of a public office. There can be no doubt whatever that the public are vitally concerned -- and that word is used not merely in its literal sense--in the manner in which he and those placed under him discharge their duties, but, neither he nor any of his subordinates has any manner of coercive power. The Engineers who are in charge of the Mettur Dam and the canals connected with it are certainly discharging duties in which the public are deeply concerned and nobody will have any doubt that they are public, officers notwithstanding the fact that none of them may hare any coercive powers. Likewise, the officers of the Agricultural Department, the officers of the Veterinary services, the specialists employed in combating death-dealing viruses and parasites and a whole host of others similarly employed.
32. Authority too is not lacking. In Nazamuddin v. Queen Empress, ILR 28 Cal 344 a Bench of the Calcutta High Court held that the dictum in 12 Bom H. C. 1 was too narrow, and, a Bench or this Court in Public Prosecutor v. Annam Nayudu, ILR 48 Mad 867 : (AIR 1923 Mad 1093) was inclined to accept the Calcutta view.
33. The learned Advocate General also referred to Govinda Chettiar v. Uttukottai Cooperative Society, ILR (1940) Mad 929 : (AIR 1940 Mad 831) where it was held,
"A liquidator appointed by the Registrar of Joint Stock Companies to wind up a Co-operative Society is not a "public Officer" within the meaning of Section 2(17) of the Code of Civil Procedure simply because he is given certain guasi-judicial powers and the duties which he performs must necessarily be regarded as public duties. He is not appointed by the Government. Moreover, every person appointed by the Government to perform public duties is not necessarily a "Public Officer".
33-A. On this decision two observations may be made. One of that in order to constitute a public officer it is not always necessary that the appointment to the office should be made by the Government. Take for example the cases of village Headman and Village Karnams, who would ordinarily be regarded as public officers. In areas covered by Madras Act II of 1894 and Act III of 1895 they succeed to their office by virtue of hereditary right. In other areas they are appointed not by the Government at all but by officers subordinate to the Government. The other is that it is difficult to acquiesce in the view that a person appointed to perform public duties need not necessarily be a public officer. It is unnecessary to examine this case further because the position of the Government Pleader is in no Way comparable to that of a liquidator.
34. The learned Advocate-General next referred to State of Rajasthan v. Madanswarup, . The facts there were as follows, By an agreement entered into with the former State of Bikaner the plaintiff was engaged as a Government advocate for a period of five years on a certain monthly remuneration. The appointment was continued until the Bikaner State was merged into the United States of Rajasthan as constituted in April, 1949. In February, 1950 the State of Rajasthan terminated the services of the plaintiff and that termination was challenged. The court observed.
"Whether a legal practitioner is engaged by the State for conducting its cases in a particular district or for the whole State and the latter styles him as Government Advocate or Assistant Government Advocate hardly makes any difference to the teal position of such practitioners. The precise relationship between the plaintiff and the former State of Bikaner was that of a standing counsel and his client, and that the plaintiff was never a member of the civil service of the Bikaner State or the holder of a civil post at any relevant time; and Article 311 cannot possibly be attracted in such case. In other words, the contracts between the two parties were entirely professional contracts and did not involve the relationship of master and servant."
35. The first observation to be made about this case is that we have no information as to what all the duties were of the plaintiff when he entered into his agreement with the former State of Bikaner. In the instant case full information is available; the duties of the Government Pleader, Madras are enumerated in the precis of the Standing Orders attached to G. O. No. 2606 dated 25-9-1958. Whoever reads them can have no doubt whatever that the duties of the Government Pleader, Madras are duties of a public nature. Besides, as already explained the public are genuinely concerned with the manner in which a Government Pleader discharges his duties because, if he handles his cases badly, they have ultimately to foot the bill. The Rajasthan case docs not take into account all the aspects of the matter.
36. The learned Advocate General argued that the Government Pleader, Madras is only an agent of the Government, that his duties are only to the Government who are his principals and that he owes no duty to the public at all and that for that reason be would not be the holder of a Public Office.
37. It is difficult to accept this view. The contention of fee learned Advocate General may have been less untenable if the duties of the Government Pleader were merely to conduct in courts cases to which Government are a party. But, as the rules stand, he has a number of other duties to discharge. Besides, even if his only duty is the conduct of cases in which Government have been impleaded, still as explained more than once before the public are interested in the manner in which he discharges his duties.
38. I now move on to another point. It has been already mentioned that the rules relating to the Madras State Higher Judicial Service were amended in order to enable Mr. Alagiriswami to draw retirement benefits on the invalid scale because he was required "in the public interest" to vacate the office of Judge of the City Civil Court which he held and take up the post of Government Pleader. Now, if the post of Government Pleader were not a public office, how could it be said without incurring the charge of inconsistency that it was in the public interest to appoint him to that post? Government cannot have it both ways.
39. Nobody seriously doubts that the State] Prosecutor in the City and Public Prosecutors in the mufassal are holders of public offices. Assistant State Prosecutors and Assistant Public Prosecutors are classified as Government Servants. (See pages 154 and 155 of volume III of the Madras Services Manual). Can there be any possible doubt that the Government Pleader in the City of Madras is the counterpart on the civil side of the State Prosecutor (in the city) and the Public prosecutors (in the districts) on the criminal side of judicial administration?
40. A study of the literature that was placed before us on this subject -- and counsel appear to have made an exhaustive study of the matter --removes all doubts. In fact every time further thought is given to the matter the conclusion emerges with greater strength than before that the Government Pleader, Madras is the holder of a public office.
41. I shall now examine the third proposition of Mr. Vasantha Pai.
42. The rules relating to the appointment of of Government Pleaders are summarised in the Precis of the Standing Orders appended to G. O. No. 2962 dated 10-8-1932. This precis particularises the two fields from which alone recruitment to the post of Government Pleader may be made. One comprises certain categories of judicial officers, as has been already explained. But then, to qualify within this category the candidate must have held the office for five years. Mr. Alagiriswami's tenure in the City Civil Court was only for a period of one year, and, for that reason, he failed to qualify in this category. Nor, said Mr. Vasantha Pai, was he qualified on the basis of his being an advocate of this Court. The validity of an order must be decided in relation to the state of facts existing on the date on which the order was made.
In the present case the order appointing Mr. Alagiriswami as Government Pleader was made on 22-6-1960 on which date Mr. Alagiriswami was still a Judge in the City Civil Court and was therefore not an advocate within the meaning of the Rules. Nor can it be claimed that on 1-7-1960 when he admitted (sic) the office of Judge in the City Civil Court he was an advocate, because the Rules contemplate the selection of a person who was in actual, genuine, bona fide practice.
43. On the first part of this argument. Though one would usually seek to test the validity of an order with reference to the state of facts existing on the date on which the order was made, it may not be right, to say that every fact in the future, particularly the immediate future, should be ignored. For example, rules may prescribe that a candidate for a particular post should hold a degree in a particular subject. The candidate may have sat for the relevant examination; but its results may not have been announced. In such circumstances, there would be nothing improper in recruiting the candidate, it being made clear that the appointment would be contingent on his having passed the examination.
Similarly as regards age. The rules may prescribe that a candidate should have obtained a particular age before he can hold an office. Now, where the age of the candidate is known and it is clear that before the date of which he could possibly enter on his duties he would have attained the requisite age, there can be nothing wrong in making an order of appointment in his favour.
44. The decision in Sivaramakrishnan v. Arumugha Mudaliar, (S) is in point here. That was a case in which an
Assistant Secretary to the Government, was by an order dated 17-3-1954 appointed to the office of the Inspector General of Registration with effect from 18-4-1954. That order was issued without consulting the Madras Public Service Commission. When this contravention of the rule bearing on the matter was brought to the notice of the Government, they issued an order No. 499, on 8-4-1954 excluding the post from the purview of the Commission. The court held,
"If the Government had the power of issuing another notification appointing respondent 1 to the office simultaneously with the publication of G. O. No. 499, we do not see any legal obstacle in the way of our holding that, even if the Government had no power to validate an appointment retrospectively, on the date when the appointment took effect, it was valid by reason of the amended regulation passed on 8-4-1954."
45. Notwithstanding all this, there can be no doubt whatever about the intention of the Rules applicable to the present case. Their intention is that where a selection is made from among advocates the selected candidate should have been a person really practising at the Bar as distinct from one whose name is merely on the rolls of this Court. Most subordinate Judges, Chief Presidency Magistrates and other judicial officers would normally have been enrolled as advocates of this Court before they entered government service and worked their way upto the posts enumerated in the precis of the Standing Orders.
It could not have been the intention of the Rules that such persons could claim to be selected on the basis that they were advocates; the explicit requirement that such judicial officers should have held those posts for five years would bar such a claim. What happened in this case was that Mr. Alagiriswami vacated the post of a Judge in the City Civil Court and thus notionally reverted to the Bar. It was only by this process that he became technically eligible to be grouped in the category of advocates. It must be agreed that if we have regard to the substance of the matter, what was done in the present case was not so much to comply with the Rules, as to evade them and to circumvent, them.
Still there was a technical compliance -- a rigidly formal compliance --with the Rules and Mr. Alagiriswami became a practising advocate in the strictest and narrowest sense of the phrase. That Government should have been actively and diligently privy to and abetted the evasion of the Rules they had themselves formulated, was the subject matter and quite properly too of some severe criticism by Mr. Vasantha Pai.
46. There was some plain speaking -- very plain speaking on the next proposition of Mr. Vasantha Pai. As mentioned earlier Mr. Ramachandran had categorically stated in his affidavit that he believed that in 1959 the name of Mr. Alagiriswami had been sent up for appointment as a High Court Judge but that the recommendation was rejected on the ground that Mr. Alagiriswami lacked judicial experience. Mr. Ramachandran had also stated that the present appointment was made in order to enhance and accelerate the chances of Mr. Alagiriswami's appointment as a High Court Judge. Mr. Vasantha Pai remarked that if Mr. Alagiriswami had continued to remain in the Higher Judicial Service of the State his chances of being promoted as a High Court Judge would have been extremely slender.
There are a number of officers senior to him whose legitimate claims, it would have been impossible to persuade any fair minded authority to overlook. But, if it could be so contrived that it would be possible to rest the claims for the promotion of Mr. Alagiriswami on the ground that he is a member of the Bar, his prospects would be visibly brightened. The post of Government Pleader has been the door by which, in the past, very eminent persons became Judges of this Court. The earlier efforts of 1959 to bring in Mr. Alagiriswami by the front dcor having failed the endeavour now is to let him in by the postern gate. The Minister responsible for the appointment now under challenge is seeking to shepherd Mr. Alagiriswami into a Judgeship of this court by an alternative route.
The real purpose of the present appointment is to beat the queue of officers senior to and in front of Mr. Alagiriswami, to bypass that queue and to confer on Mr. Alagiriswami a preferment which he would not have normally earned. The action of the Government in this matter is wholly devoid of bona fides. They have exercised their power for a collateral purpose, for a purpose foreign to, and indeed, repugnant to the entire scheme of the Rules. The Rules have been framed to ensure that only proper persons would be appointed to the post of Government Pleader. The Government have exercised their power under the rules to facilitate the preferment of an individual to another post; they have thus made a fraudulent use of their power. Harsh criticism all this apparently is, but essentially just.
47. Mr. Vasantha Pai further pointed Out --and quite pertinently--that if the averments which Mr. Ramachandran had made in his affidavit were erroneous or inaccurate both Mr. Subramaniam and Mr. Alagiriswami would have hastened to contradict them. That they did not do. Neither of them immediately filed an affidavit in reply.
48. No doubt Mr. Subramaniam filed an affidavit on 16-8-1960. But, that was in answer to a notice requiring the Government to admit certain facts and at that stage the filing of an affidavit could not be avoided without evoking further criticism. This affidavit one notices is more evasive than frank. Mr. Ramachandran has made a categorical assertion that he believed that the name of Mr. Alagiriswami had been sent up in 1959 for being appointed as a High Court Judge and that the recommendation had been turned down on the ground that he lacked judicial experience. Now, if this assertion were wrong Mr. Subramaniam could have said so in plain terms, but he has not elected to do that. Instead he seeks shelter behind a plea of privilege.
49. Here one may appropriately refer to the observations of Chagla C. J. in Dinbai v. Dominion of India, . In paragraph 17 the learned Judge observed :
"!It is unnecessary to state that a privilege of this nature should be rarely claimed and should only be claimed after the responsible Minister or the head of the Department has fully satisfied himself that the document whose disclosure is being resisted is really a document relating to the affairs of state and whose disclosure will result in injury to public interests. The scales are always weighed against the subject who fights against Government, and Government should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit."
50. In what manner public interests will be injured or prejudiced by dealing frankly with the allegations of Mr. Ramachandran it is very hard to see. Let us he clear about the matter. There is no duty on Government to claim privilege in a case of this kind. But they have a duty to speak the truth and the whole truth whether in a case of this kind or different -- and affidavits are not excepted from the scope of the rule. The plea taken here is only an excuse for disingenuousness.
51. The principal charge which the petitioner is making against the Government is that the appointment in question was made to facilitate Mr. Alagiriswami's chances of promotion to a Judgeship. In respect of this too the answer is evasive. In line with the arguments which the learned Advocate General had advanced before us on an earlier date, the affidavit of Mr. Subramaniam on this point was, in part, to the effect that Judges of High Courts are appointed by the President, and that being so how could he possibly say what the President and others whom he might consult would do in the future?
52. No doubt the hist part of the first sentence in paragraph 9 of the affidavit of Mr. Subramaniam is capable of being understood as being a denial of the charge preferred by Mr. Ramachandran. But then, this is whittled down by the sentences that follow. One cannot refrain from observing that if the suggestion of Mr. Ramachandran in this respect were unfounded Mr. Subramaniam could have said so in more easily intelligible words.
53. Further evidence of the real purpose of the Government is furnished by another circumstance. Under the Rules in force at the time immediately preceding his appointment as Government Pleader Mr. Alagiriswami was not entitled to any pension or retirement benefit. The rule was, however, amended in order to confer on him such a benefit. No doubt the amendment was so phrased that it would avail other officers, also placed in like situations in the future. But, if they wanted to effectuate the purpose they had in view the Government had no other choice; the amendment had to be inevitably in that form.
If the Government had not taken care to preserve the appearance of propriety in respect of this part of the matter, their attempt to confer this form of pensionary benefit on Mr. Alagiriswami would have run into serious difficulties.
54. It is not as though the situation was such that no really competent -- as dislinguised from persons who are merely technically qualified --person was available from the Bar and the Government had no alternative but to require Mr. Alagiriswami to resign his post or retire from it and thus make himself eligible for recruitment from the Bar. It may be that today there is no one in the Bar in Madras comparable in statue to some of the towering giants of the past. But, I am unable to persuade myself that it is so destitute of talent as to be unable to furnish a suitable Government Pleader.
55. From the affidavit filed by Mr. Krishnaswami Ayyar it appears that one of the grounds on which Mr. Subramaniam sought to justify the order under challenge was that
"The appointment required a special knowledge of secretarial work which was absent in the members of the Bar".
Subsequently Mr. Subramanaim issued a statement to the Press in which he explained that it would be wrong to suggest that Mr. Alagiriswami had been appointed primarily because of his secretarial experience. The first thing considered was his legal knowledge as judicial officer and as Law Secretary. The further consideration was that he had the advantage of experience of dealing with Government matters and secretarial administration. The attempt to rest the defence of the appointment of Mr. Alagiriswami even in part on the ground of his experience in the secretariat appears to be more resourceful than honest. One doubts whether Mr. Subrarmmiam himself could have had any belief in it, The Officers of Government who work in their secretariat are not the hierophants of an obscure cult and no esoteric rituals are involved in their labours. This plea of Mr. Subramaniam cannot be treated as anything more than a pretence, an endeavour to mislead, but which, nevertheless, can succeed only, with the ignorant and the uninitiated.
56. In the counter filed on behalf of Government the assertion is made -- an assertion for which Mr. Subramaniam has assumed responsibility -- that the Government acted in what they conceived to be their own best interests in making the appointment in question. No materials whatever to sustain this plea were placed before the Court. It is a stark assertion and in the context of known facts, leaves one cold and sceptical.
57. It was not pointed Out in what way the attainments or qualifications of Mr. Alagiriswami are exceptional or unusual or markedly superior to those of numerous others in the field whether this field be the field occupied by officers in the Higher State Judicial Service or the field occupied by the advocates of this Court.
58. Dealing with the allegation in the affidavit in support of the petition that the appointment of Mr. Alagiriswami as Government Pleader was made to smoothen his path upwards, the learned Advocate General referred us to the various Articles in the Constitution which provide for the manner in which a Judge of a High Court has to be appointed, and, said that Mr. Subramaniam could not possibly anticipate what the President or the Governor or the Chief Justice would do. That is true enough; Mr. Subramaniam docs not possess powers of clairvoyance. But the gravamen of the charge made by the petitioner is not met by disclaiming prophetic powers. This is just another exercise in evasion. Mr. Subramaniam was able to parry his questioners, but his attempt would have collapsed had he been in the witness box.
59. In the clash of legal arguments one must not forget that the facts are perfectly simple. There is an allegation and there is a charge. The allegation related to what happened in 1959. The charge relates to the intention of Government. If there were no substance either in the allegation or in the charge Government could have said in forthright terms:
'All this is not so. We did not send up the name of Mr. Alagiriswami in 1959 and we entertain no designs to promote him to a Judgeship. Your allegations are erroneous and your apprehensions are unfounded'.
That would have been quickest way of silencing all criticism. By making such a statement -- if true of course -- no Minister would have been violating his oath of secrecy. Nor would he have been contravening the provisions of any Statute.
60. Why then was this not done? The answer is easy. The sponsors of the scheme for the promotion of Mr. Alagiriswami as a High Court Judge know that if they speak the truth their plans would be ruined. Should the President be once apprised of the facts he would not give the name of Mr. Alagiriswami a second look. The matter is just as simple as that. So the truth must be concealed. Hence all this dissimulation.
61. It is perfectly manifest that we have before us a wholly indefensible essay in favouritism, a deft adaptation to modern conditions of old palace-crafts. Mr. Subramaniam can still find uses for certain of the less delectable devices resorted to by some individuals when for a time they happen to be repositories of segments of the secular power.
62. I now go on to the fifth proposition of Mr. Vasantha Pai. A long procession of cases have decided that where power is conferred on an authority for a particular purpose, but that power is exercised to attain a collateral object, when the exercise of that power is wholly a cloak for another ulterior purpose, when the exercise of the power has been only colourable, or amount to a fraud on the power, the court will intervene. One of these is In re, Kinchant, 1807-1 QB 132. That was a case in which a police authority resolved that their former chief constable to whom they had granted a pension on the ground of incapacity by infirmity, should attend at Warwick on a specified day and hour for the purpose of being examined by two Doctors as to his state of health and that if he failed to do so his pension should be cancelled.
He did not attend in compliance with this direction and the Police authority cancelled his pension. The court found that the police authority had used their statutory power of requiring the pensioner to attend at Warwick not for the purpose of satisfying themselves as to his continued incapacity, but for the purpose of assisting the Bankruptcy court. Consequently they had exceeded their jurisdiction and the pensioner was entitled to a mandamus calling upon the police authority to show cause why they should not pay him the arrears of his pension. On page 143 the court observed :
"It appears to me that the only power conferred upon a police authority under the Act of 1890, Section 5, Sub-sections (3), (4) and (7), to require a pensioner to submit himself to examination is for the purpose of satisfying themselves as to his continued incapacity, and, if the order is made for some other purpose, then the authority have exceeded their jurisdiction; they have used the provisions of the statute for purposes not authorised by it, and the pensioner is not bound to comply with a requisition which is made without jurisdiction".
On page 145 the court ruled:
"In my Judgment, the applicant has established that the order for the examination of Kinchant contained in the resolution of July 12, 1894, was made by the committee, not really for the purpose of examining him as to the state of his health, but in order to carry out the advice of the Home Office, and, consequently, was made without jurisdiction, Kinchaut, therefore, was not bound to obey it, and his pension having been forfeited for such disobedience, the mandamus should go, this being the only remedy Kinchant has whereby to obtain continued payment of the pension of which he has been illegally deprived".
63. In Westminster Corporation v. London and North Western Railway, 1905 AC 426 the House of Lords laid down the law in these terms:
(Page 430). "There can be no question as to the law applicable to the case. It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first. But in the present case I think it Will be convenient to take it separately,"
64. In R. v. Governor of Brixton Prison; Ex-parto Sarno, 1916-2 KB 742 Lord Reading, C. J. Stated:--
"If we were of opinion that the powers Were being misused, we should be able to deal with the matter. In other words, if it was clear that an act was done by the Executive with the intention of misusing those powers, this Court would have jurisdiction to deal with the matter."
65. In Re, Banwarilal Roy, 48 Cal WN 766 the learned Judges observed as follows: (Page 782).
"If the language which prescribes the condition precedent indicates that the legislature intended to give unfettered discretion to the person on whom the power is conferred, i.e.. to leave the matter entirely to his judgment or opinion, then if that person, in good, faith, exercises the power the Court has no power to interpose Us own judgment or opinion or interfere with the exercise of the power.
If, In the last-mentioned case, the person exercises the power in bad faith or for a collateral purpose, it is an abuse of the power and a fraud upon the statute and is not really an exercise or the power at all and the court can interfere with such colourable exercise of the power."
Ahmed Hossain v. The State, AIR 1951 Nag 138 was a case which arose out of the requisition of a house. The court observed at page 141,
"To exercise a statutory power for achieving a collateral object, i.e. for any purpose other than the one for which the power is given by the statute, is to abuse such a power. The principle is well established that if an authority professing to exercise its powers for a statutory purpose is in fact employing them in furtherance of some ulterior object, the Court will interfere : (see Municipal Council of Sydney v. Cmpbell, 1925 A.C. 338 at p. 343).
66. There is a comprehensive review of the authorities in re; A. K. Gopalan, Satyanarayana Rao, J. summarised the
position in these terms:
"A statutory authority, it is established law, must always be exercised honestly and without fraud, or malice The power, therefore, should be exercised bona fide and it should not be a fraudulent or colourable exercise of the power and the power conferred under the Act should not be abused with a view to gain an ulterior object; in other words, it would not be a mala fide exercise of the power. It may not be possible to state when and under what circumstances, it can be inferred that the power was exercised mala fide. In my opinion, it is a question to be decided according to the circumstances of each case and no bard and fast rule can be laid down".
67. The learned Advocate General explained that even assuming--an assumption which he took special care to repudiate--that the appointment of Mr. Alagiriswami was only a step adopted in order to facilitate Ms further promotion, still as it was intended that the order should take effect and that Mr. Alagiriswami should actually function as Government Pleader, it cannot be said that the appointment is only a cloak to attain an ulterior purpose. His explanation, no doubt, avoids the brunt of one of the numerous arguments of Mr. Vasantha Pai, but it does not dispose all of them. Even here, I would observe that the distinction which the learned Advocate General drew between a "cloak" to attain an ulterior object and a "step" to attain an ulterior purpose would sometimes be a fine one. To alter the simile, the difference between the two, would sometimes be the difference between two modes of transport towards the same destination, Where an appointment is made unmindful of legitimate considerations and Primarily only to advance the interest in life of the person appointed, that would not, in any case, be an honest exercise of the power.
68. Mr. Vasantha Pai next attempted to show that the rules applicable to the subject have statutory force. Sub-section (2) of Section 96(8) of the Government of India Act, 1919 empowered the Secretary of State to delegate the power of making rules to local Governments in certain manners. In the exercise of that power the Secretary of State delegated inter alia the power of making rules relating to the appointment of Government Pleaders to the local governments (See page 86 of the Manual of Statutory Rules and Orders, 1927 read with the entries below the heading "Special posts" on page 42 and the entries below the heading "Judicial Department" on page 49 of the same volume). It was in pursuance of these statutory powers that the G.O. of 1929 was issued, framing rules relating to the recruitment, conditions of service, pay and allowances and other matters of the Law Officers directly under the Government of Madras. Section 276 of the Government of India Act, 1935 kept alive the rules previously in force to the extent that they were consistent with the Act. That section further provided that those rules
"shall be deemed to be rules made under the appropriate provisions of the Act".
Thus, the old rules acquired a new spell of life-Under Article 313 of the Constitution, all the laws in force immediately before the commencement of the Constitution, and, applicable to any post which continues to exist after the commencement of the constitution, whether under the Union or the State, are kept alive to the extent that they are consistent with the Constitution. The definition of "existing laws" in Article 366 of the Constitution comprehends rules or regulations made before the commencement of the Constitution by any competent authority. Therefore, the rules applicable to the office of Government Pleader have statutory force.
69. This reasoning as the learned Advocate General was quick to point out, fails to take into account one fact. The Secretary of State in Council with concurrence of a majority of votes at a meeting of the Council of India held on 27-5-1930 cancelled the delegation rules of 1926 in pursuance of which G. O. No. 197, Public, dated 20-2-1929 had been made, and made fresh rules on the subject.
70. If the Secretary of State had merely cancelled the Civil Services (Governor's Provinces) Delegation Rules, 1926, it would have been possible to contend that though thereafter the Provincial Governments would have had no authority to make rules in relation to those subjects, still the rules they had previously made continued to remain in force. When the authority of an agent is terminated he would not of course have thereafter the power to bind the principal. But then all his acts antecedent to the cancellation or termination of his powers would remain valid. But, in the present case, the Secretary of State in Council cancelled not merely the delegation rule but also all the rules which had been previously made in pursuance of the delegation.
He then proceeded to frame fresh rules on the subject. of the old rules only some were preserved and these are referred to in Paragraph 7 of Page iii of Volume I of the Madras Services Manual, 1936 edition. In order therefore to save the G. O. of 1929 it would be necessary to show that an order has been made including the post of the Government Pleader in the category of Specialist Services, being item (5) in paragraph 14 on page V. No such order has been shown to us. That being so, it would follow that the G. O. of 1929 ceased to have statutory force.
71. Under the heading VI General, G.O. 200 dated 11-1-1941 issued in the Home Department of the Government of Madras refers in the margin to G. O. 197, Public dated 20-2-1929 and to some others. Mr. Pai argued that this reference is sufficient to place the G. O. of 1941 on a statutory basis.
72. It is not possible to agree. The citations in the margin can he regarded only as references to the earlier orders on the subject. What the G. O. says is:
"The principles generally followed in appointing Law Officers are given in G.O. No. 197, Public dated the 20th February, 1929" etc.
It amounts only to a statement of practice, past and current. It will also be noticed that none of the G. Os. issued subsequent to 1929 refers to the authority in pursuance of which they were passed. Normally when Government issue a general order, either on the basis of a statute or a statutory rule, it is usual to specify the section of the statute or the number of the rule in pursuance of which the order in question is made. I am willing to agree with Mr. Vasantha Pai that the omission is not decisive and does not always determine the question, but the fact that the omission exists cannot be overlooked.
The usual way of indicating in an order "of the Government that they are acting only in the exercise of their general powers of administration and not in pursuance of a statutory authority, would be to omit from the order any reference to the statute or the rules thereunder. In the circumstances, the contention of Mr. Vasantha Pai, that the rules have statutory force cannot be accepted.
73. Mr. Vasantha Pai finally argued that even if the rules arc to be treated only as administrative rules, the Government would still be bound by them. Reference was made to page 296 of Wade and Philipp's Constitutional Law where the learned authors observe :
"It must also be borne in mind that those powers, the exercise of which is subject to judicial review, are not normally exceeded or abused. It is the abnormal case which conies before the Courts. Just, however, as the courts will prevent an administrator from exceeding his statutory power (acting ultra vires), 'so they will prevent the wrongful exercise of a discretion unless it is in terms absolute'. Such a wrongful exercise of discretion may arise from consideration of irrelevant issues, from failure to consider relevant issues, from an erroneous application in law of the the power, e.g. by wrongly interpreting the statute which granted it, or from improper motives".
The words underlined (here into ' ') in the above quotation suggest that the learned authors intended that their observations should apply only to cases where discretion is conferred by some Statute.
74. Mr. Vasantha Pai finally sought to rest his seventh and last proposition on the decision of a Full Bench of this Court in Nagaralhnammal v. Ibrahim Sahib, . In respect of this it may be remarked that if the conclusion be right that when the Secretary of State in Council cancelled in 1930 the delegation of powers and the rules which had been made thereunder, the earlier rules ceased to have statutory sanction, then the decision of the Full Bench will have no application. What the Full Bench decided was this. Where an authority has power to make rules relating to a subject matter and also the power to decide disputes arising in the field occupied by that subject matter, the two powers and functions must be kept distinct and separate. The dispute must be decided with reference to the rules in force at the time the adjudication had to be made and, the rule making power cannot be invoked in relation to that adjudication.
In the present case no adjudication is involved. Besides, the rules themselves, being devoid of statutory force, remain merely as declarations--no doubt public and explicit declarations but still only declarations-- by Government of their intentions and line of conduct. They say in effect that when they have to make the appointment of a Government Pleader they would act in the manner specified in the rules. But there are no legal sanctions behind them, and, in such situations, the only safeguards must be the sense of responsibility, the respect for propriety, the regard for decorum and the obligation to behave fairly, and beyond all else, to behave honestly which must actuate and bind the holders of every public office of whatever consequence. It follows, that against unhappy adventures like the present, adventures in the dispensation of Government patronage, courts, can give no worthwhile relief.
The corrective must be applied, in the first-instance, by those in administrative or operational control, and, ultimately by a resentful and uncompromising public opinion.
75. In the result, the petition is dismissed. Naturally there will be no order as to costs; it is in the public interest that nepotism should be exposed and its ways laid bare.
76. The facts of the case have been fully set out in the judgment just delivered by my learned brother, and it is not necessary for me to restate them.
77. This is an application for the issue of a quo warranto challenging the validity of the appointment of the first respondent as Government Pleader of this court. The first respondent was formerly a member of the Madras State Higher Judicial Service from which service he retired and took up office as Government Pleader. The petitioner avers that the first respondent was appointed in pursuance of the C. O. No. 2962 dt. 10-8-1932 having statutory force, that the appointment does not comply with the terms of the said G. O. and that even if there be an apparent compliance with the terms of the G. O. the appointment is an abuse of power on the part of the State Executive Authority. The appointment is defended by the State Government on the ground that G. O. 2962 is in the nature of an executive instruction without the efficacy of a statutory rule, the violation of which, if any, is not justiciable.
Alternatively it is also contended by the State Government that there has been a literal and substantial compliance with the terms of the G. O. and that the charge of misuse of power is baseless and not well founded. An objection is also taken as regards the maintainability of the application on the footing that the office of the Government Pleader is not public office amenable to the prerogative writ of quo warranto.
78. The writ of quo warranto is a judicial proceeding to determine whether a public office has been usurped. It is the remedy of proceeding "whereby the State inquires into the legality of the claim which a party asserts to an office or franchise and to oust him from its enjoyment if the claim be not well founded or to have the same declared forfeited." (Shelling, Injunction and other remedies, Vol. II page 1516). The office must be a public, that is, the duties of the office must he of a public nature. "The office must be held under the Crown or have been created by the Crown, either by Charter alone or by statute" (Halsbury, Vol. II P. 146). The Crown means the Supreme Sovereign power of the Stale or the Union.
79. I shall first consider the question as to whether the office of the Government Pleader is a "public office" in respect of which an application in the nature of quo warranto proceedings can lie. There is no definition of the term in the General Clauses Act. The two statutes to which Our attention has been drawn by the learned counsel on both sides for a definition of the term are (i) The Civil Procedure Code and (ii) The Indian Penal Code'. The Indian Penal Code defines the term public servant. The Civil Procedure Code defines "Public Officer" under Section 2(17). That sub-section contains several Sub-clauses, (a) to (h). What is material in the present context is that provided for in Sub-clause (h) and that is as follows :
"Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty."
Section 21 of the Indian Penal Code defines "public servant" and the latter portion of the 9th clause is as follows:
"Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty".
This is word for word the same as Section 2(17)(h) of the Civil Procedure Code extracted above. Both these definitions in the two statutes govern only the subject matter of the respective enactments. It is not possible to derive much help from the definitions as to what is meant by a "public office." A basic part of the two statutory definitions is that there must be periormance of 'any public duty'. The Government Pleader is, undoubtedly,' an officer in the service or pay of the Government or remunerated for the performance of a duty. The question much debated before us by the Bar is whether the duty performed V the Government Pleader in the discharge of his function amounts to a public duty.
80. Before dealing with the decisions in India relating directly to the office of the Government Pleader, I shall first refer to a few decisions of the English Courts wherein some attempt was made to define the term "public office" in proceedings for the issue of a quo warranto. The leading case on the subject is (1846) 12 Cl and Fin 520. The office involved in that case was that of a Treasurer of the County of the City of Dublin. The nature of the office does not appear very precisely from the report of the decision. At page 528 the argument of Mr. Serejeant Manning is set out in the following terms:
"The office of treasurer of the City of Dublin is not a corporate office, nor is it an office invested with a public trust or with the exercise of any royal authority, and if so, no quo warranto will lie".
On the other hand the argument of Mr. Napier for the defendant as found at page 531 was as follows :
"This is an important public office; and if a quo warrants will not lie, then the party who is unjustly excluded from the office would be without a remedy".
Again at page 533 the argument for the defendant continued as follows :
"If it can be truly alleged that an office is an office which concerns the public interest, and involves the discharge of a public trust and of public duties, the minute nature of those duties can only raise the question whether the circumstances are sufficient to justify the issuing of an information in the nature of a quo warranto against any one who usurps the office, but the right to issue the information cannot be doubted". .........
81. The real question that was decided in Darley's Case, (1846) 12 Cl and Fin 520 was whether a quo warranto proceeding will lie only for offices granted by charter or will also lie for office derived from the Grown. The judgment of Lord Chief Justice Tindall shows that there was a conflict of opinion in this matter. At page 539 Tindal, C. J., observed as follows :
"That an information of this nature will lie for offices granted by charter, is a matter beyond dispute; and the authorities are numerous that the same remedy is available against intruders into offices of a public nature, which are supposed to be immediately or mediately derived from the Crown, and existing at common law, though of a very subordinate character.
82. The position is summed up at page 541 in these terms :
"And after the consideration of all the cases and dicta on this subject, the result appears to be, that this proceeding by information in the nature of quo warranty will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and substantive Office, not merely the function or 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."
This decision lays down the principle that one of the attributes of a 'public office' is that it must be a substantive office, namely, that it should not merely be the employment of a deputy or servant. The incumbent of the office must be of "independent officer" and not a servant acting to the bidding of the employer and mechanically carrying out the instructions and directions of the employer.
83. The next case that can usefully be referred to is that reported in (1851) 17 QB 149. The office in question was designated as clerk to the Board of Guardians. The administration of the Poor laws in St. Martin's Parish and the government of the work house were placed in the hands of 24 guardians by an order of the Poor Law Commissions is under Sections 4 and 5, W. IV, Clause 76 dated 29-4-1835. The duties of the office are set out at page 151. The duties were to attend all meetings of the Board of Guardians and to keep punctually minutes of the proceedings, to enter the minutes in the book, to submit the same to the presiding Chairman, to keep check and examine all accounts, to peruse and conduct the correspondance of the guardians, to prepare all written contracts and agreements to be entered into by any party. with the guardians and to discharge other functions most of which are purely ministerial in character. At page 160 Lord Campbell, C. J. observed as follows :
"Then, is the office of a public nature? We must look to the functions and compare them with these which were held to constitute such an office in (1846) 12 Cl and Fin 520. The House of Lords laid down no criterion in that case; but they held that the office there in question was public within the rule they laid down; and I think the present office is not distinguishable."
Patterson, J. at page 162 stated thus:
"But the question here is not whether the body for which the officer acts is public; it is whether his duties are of a public nature; and, as the exercise of them materially affects a great body of persons, I thank they' are so. Therefore according to (1846) 12 Cl and Fin 520, quo warranto lies, and consequently a mandamus ought not to be-granted."
At page 163 Erle, J. approached the question thus :
"Three tests of the applicability of quo warranto are given by (1846) 12 Cl and Fin 520 the source of the office, the tenure, and the duties. The source here is a statute; the tenure, secure enough to satisfy the rule; as to the duties, no definition of public duties has been given; all we can do is to follow such guidance as we have from the last cited case. If the execution of an office secures the proper distribution of a fund in which a body of the public (the contributors to a parish rate) have an interest, the office may be deemed public. I think the Clerk's duties here are so, not Only on the grounds which have been stated, but inasmuch as he has the countersigning of cheques, a function which, if duly discharges, secures the rate payers generally, and the neglect of which may prejudice them.''
The next case of importance is that reported in 1916-1 KB 595. The office which formed the subject matter of quo warranto in that case was that of a member of the Privy Council. Lord Reading, C. J. dealt with the question at p. 609 as follows :
"The test to be applied is whether there has been usurpation of an office of a public nature and an office substantive in character, that is, an office independent in title".
The observations of the two learned Judges, Avory and Lush, JJ. were general. At page 621 Avory, J. after quoting the observations of Tindal, C. J., in Darley's Case, (1846) 12 Cl and Fin 520, observed as follows:
"I do not think it can be doubted that a Privy Councillor holds an office of a public nature and a substantive or independent office and is not a mere deputy or servant, although he may be dismissed at pleasure ........."
Lush, J. at page 627 observed:
"It (quo warranto) is the process by which person who claims to exercise public functions of an important and substantive character, by whomsoever appointed, can be called to account if they are not legally authorised to exercise them ......... and the appointment of person to be a member of the Privy Council is, I think, clearly the appointment of officer and discharge public duties, either judicial or otherwise ........."
What is determinative of the nature of the office are the functions discharged by the officer and the duties performed by the incumbent of the office. We have therefore now to see the duties appertaining to the office of the Government Pleader. It is enough to refer to G. O. 2600 dated 25-9-1958, Precis of Standing Orders, relating to Law Officers. Annexure II relates to Government Pleader. The following extracts from the G. O. indicate fairly the nature of the office and the duties performed by him :
"The Government Pleader, Madras is regarded as Assistant to the Advocate General especially for muffasal business, and in cases of difficulty may apply to that officer for advice .."
The Government Pleader, Madras will be in charge of and attend to all work than writ petitions and writ appeals in the High Court, and in muffasal courts, when requested to do so by Government. He is also appointed ex officio Government Pleader for Central Government case.
The Government Pleader will also advise the Government, the Board of Revenue, the Heads of Department and the General Officer commanding Madras Area, on any points on which his opinion is sought". The dudes of the Government Pleader are :
(i) To conduct and defend civil appeals or other proceedings on the Appellate Side of the High Court in which the Government are concerned;
(ii) to appear when so instructed in all suits, appeals, or other proceedings of a civil nature instituted in the High Court, the City Civil Court or the Presidency Court of Small Causes, Madras, by or against Members of the Police Force in their official capacity;
(iii) to advise Government, the Board of Revenue, and Heads of Departments and District Officers in cases of difficulty in regard to the institution, defence and conduct of suits or other civil proceedings, in which the Government are concerned or interested, instituted before subordinate courts and, in suits of more than ordinary importance etc..........
(x) To report to the Government as soon as possible as to the advisability of appealing against the decision.
(xii) to examine the cases of title referred to him for opinion by the Co-operative Housing Societies applying for State Loans in their respective areas and send his opinion as promptly as possible.
(xiii) where the Government requires, to prepare or scrutinise deeds, conveyances, leases, bonds of indemnity executed between themselves and a third party;
(xiv) to examine titles and settlement of mortgages in connection with building schemes for educational institutions .....
(xxii) to advise Government on Bills of Central Government or the State Government sent to him for his opinion".
84. The Government Pleader is also appointed ex-officio Government Pleader for the purpose of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908.
85. It is manifest that the office includes several duties and functions apart from appearing for the State Government in proceedings in Courts of Law. The Government Pleader has an advisory character in the discharge of which function he has necessarily to act in an independent and responsible manner. It cannot be said that the Government Pleader is a mouth piece of the State Government voicing their instructions or a mere conduit pipe conveying to the Court the instructions of the State Government.
86. The learned Advocate General appearing for the State contended that even assuming that the Government Pleader is not a mere deputy or a servant of the State Government and that part of his work comprises duties independent in character the office held by him is not a public one as the rights of the Members of the Public, large or small, are in no way affected by the exercise of those functions. The State Government is just as much a party litigant as any oher party in proceedings before the Courts of Law and therefore, so the argument ran, whatever effect the decisions of the Court may have on public interest, the Government Pleader representing the State in the proceedings cannot be said to be affecting public interest by the discharge of his duties.
In this connection reliance was placed upon the decision in the Commissioner of Income-tax, Bombay v. Bombay Trust Corporation Ltd., ILR 60 Bombay 900 : (AIR 1936 PC 269). In that case one of the points raised before the Judicial Committee was whether an application under Section 45 of the Specific Relief Act will lie against the Commissioner of Income-tax for refund of tax amounts alleged to have been collected by him under an invalid order of assessment. The Judicial Committee held that the court cannot claim even in appearance to command the Crown and that where an obligation is cast upon the Principal the court cannot enforce it against the servant merely as such. At page 917 (of ILR Bom) : (at p. 277 of AIR) their Lordships observed :
"Before Mandamus can issue to a public servant it must therefore be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, and independently of any duty which as servant he may owe to the Crown his principal. Whether the Commissioner of Income-tax either generally or under Section 66, Sub-section (5) of the Income-tax Act is in this position as regards the refund of tax paid under an invalid assessment is the question raised by Clause (g) of Section45 of the Specific Relief Act. This their Lordships do not find it necessary in the present case to decide .... ....."
The learned Advocate-General laid stress upon this dictum of the Judicial Committee which made it clear that the enforcement of a statutory duty by the public servant must be a duty which does not partake of the character of the duty of servant to the master. This principle is in accord with the description of the nature of a public office as laid down in Darley's case, (1846) T2 Cl and Fin 520 and in Spayer's case, 1916-1 KB 595. This case does not therefore advance the contention of the learned Advocate-General that the office of Government Pleader is not a public office as ultimately the nature of the office would depend upon the duties and functions of the office.
87. The decision was referred to both by
the learned Advocate General and Mr. Vasantha Pai, the learned counsel for the petitioner. That was a case in which an Additional Government Advocate in the High Court of Allahabad contended that a new rule which came into effect after his appointment prescribing the superannuation age of 60 will not affect his rights to hold office for the prescribed term for which he was originally appointed. Incidentally the question whether a Government Advocate was a member of a Civil Service of a State within the meaning of Article 511 of the Constitution was discussed. At page 172 one of their Lordships observed as follows :
"In my opinion the relationship of master and servant exists between the State Government and the petitioner in a very limited sense. The relations between them were of a client and a professional man. Just as it is open to a private litigant to retain the services of an advocate for a fixed period of time on a fixed amount every month it was open to the Government to employ the services of the petitioner as Additional Government Advocate. The work that he was required to do was to appear on behalf of the Government in cases in which the Government was a party. In other words the services he rendered in the Government were in the nature of professional services rendered by a lawyer to a client. When the Government is a party to a proceeding in a court it is not exercising any of its governmental or sovereign functions and its position is the same as that of any other litigant. I am therefore of the opinion that the petitioner cannot be deemed to be a member of any public service".
This passage was relied upon by the learned Advocate General in support of his contention that under no circumstance can the office of the Government Pleader be viewed as a public office. The actual decision in the case was that the rule which was sought to be applied to the petitioner therein did not destroy such right as he had under the rules of his service as they obtained at the time when he was appointed. I am of opinion that this decision is not of much help in deciding the question whether the office of Government Pleader is a public office or not. It is to be observed that the duties of the Government Pleader may vary from State to State, and that therefore the decision of a particular High Court dealing with a particular office of Government Pleader ought not to be taken as a precedent determining the nature of the office in general. It is true that in all cases where the State engages a counsel to conduct cases in which it happens to be a party to some extent the relationship between the State and the Council is that of an employer and employee or principal and agent. But such relationship is only one aspect of the office of the Government Pleader. While the counsel employed as Government advocate is no doubt bound to act on the Instructions of the State employing him the Stale equally respects the advice given by the counsel even in the matter of the conduct of the cases.
I cannot visualise the possibility of the State Government acting contrary to the advice of its Law Officers. The observation of the Allahabad High Court in the decision just now cited that the Government as a party to a proceeding in a court cannot be said to be exercising any of its governmental or sovereign function is, with respect, too vide and broad. It is however not necessary in this case to embark on an enquiry as to what constitutes governmental or sovereign functions. But sufficient it to say that in quite a large number of cases before the courts the pursuit of remedies sought by the Government or the defence of the Government in actions against it cannot but constitute an essential feature of vital governmental activity.
I may refer to one illustration. Under the Madras Estates Abolition Act, the Government may notify a particular village as an estate. Objection may be taken by the landholder of the villages that it is not an inam estate coming within the purview of the Act. Thereupon proceedings before the Settlement Officer, before this Estate Abolition Tribunal and before the High Court may ensue. The State Government is bound to defend its own act of notification.
In so doing it is necessarily enforcing its own legislation and such enforcement cannot be construed as anything but the exercise of the sovereign power of the State. I most respectfully express my dissent from the wide observation already referred to made by the Allahabad High Court,
88. The learned Advocate General then referred to a decision in . The appeals before the Rajasthan High Court arose out of two suits instituted by two Government Pleaders claiming damages for unlawful and improper termination of their services as such.
One of them had been engaged as Assistant Government advocate by the former State of Bikaner. He was in continuous employment as such Government Advocate until October 1947 in that State. From 1-11-1947 an agreement was entered into between him and the authorities of the Bikaner State according to which he accepted to work as a Government Advocate on a starting salary of Rs. 400/- in the grade, 400-25-600 and the appointment was to last for a period of five years. His main functions were to be in charge of the Sessions Work in the High Court and all appeals arising from such cases.
He was permitted to have private civil practice with certain restrictions. The appointment continued until the Bikaner State became merged in the United States of Rajasthan as constituted in April 1949. Thereafter he continued under the part B State of Rajasthan. The Law Secretary of the State of Rajasthan terminated his services by letter dated 7-2-1950 with effect from 11-2-1950. Thereupon the aggrieved Government Advocate instituted a suit against the State. He claimed to be in the permanent service of the former Bikaner State. He claimed compensation equal o his salary for a period from 12-2-1950 to 31-10-1952. One of the questions which was considered by the Rajasthan High Court was the nature of the office held by the Government Advocate. At page 141 their Lordships quoted the following passage taken from another decision of that court:
"It is a contradiction in terms, for a person to be a holder of a civil post and to continue still as an advocate of this court. He is no more and no less than any advocate employed by a private person". The only difference is that in this case the Government finds it convenient to employ the same person in all its cases. But merely because the Government employees the same person in all its cases and has entered into a contract with him to look after their work in a particular district on payment of a certain honorarium, it does not convert the advocate into a member of a civil post... I am equally clearly of the opinion that Article 311 cannot possibly be attracted in such cases".
89. It must be noted that the functions of that particular Government Advocate as mentioned in the decision were only to conduct the Sessions Work in the High Court and the appeals arising from such cases. The decision in the case was that the post held by him was not a civil post governed by Article 311 of the Constitution. This decision, even if right, and I am not expressing any opinion whether it is right or not, cannot be treated as any authority on the question whether the office is a public office or not. A civil post governed by Article 311 will necessarily be a public office.
But it does not follow that the non-applicability of Article 311 will be sufficient to hold that the post is not a public office.
90. I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the offiice must be held to be a public offiice within the scope of a quo warranto proceeding.
I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible.
91. I shall next consider the question whether the appointment of the first respondent is in contravention of the terms of G. O. 2962 of 10-8-1932. This G. O. was preceded by an earlier G. O. G. O. No. 197 of 20-2-1929.
That was passed in exercise of the Powers conferred under Rules 3 and 4 of the Civil Services (Governors Provinces) Delegation Rules 1920 by the Governor in Council. Undoubtedly the G. O. of the year 1929 had statutory force as it was in pursuance of rules made under Section 96(B) of the Government of India Act 1918. The question whether the 1932 G. O. has statutory force or not has been much debated at the Bar before us and I shall refer to it later on. It is common ground that subsequent to 1932 there has been no G. O. regarding the conditions of appointment to the office of Government Pleader. Rule 1(a) of the 1932 G. O. is as follows:
l(a) In this section "The Bar" shall include practising members of the Bar holding office under Government:
(b) 'Judicial Officer' shall mean a District and Sessions Judge who is not a member of the Indian Civil Service, a Subordinate Judge, the Chief Presidency Magistrate, Madras, a Judge of the City Civil Court, Madras, a puisne Judge of the Court of Small Causes, Madras or the Administrator General and Official Trustee Madras.
(c) 'Law Officer' shall mean the Law Officers directly under the Government, i.e. the Government Pleader, the Public Prosecutor, the Crown Prosecutor and the Government Solicitor in the City of Madras......
(2) No person shall be eligible for appointment as a law officer.........
(3) Appointment to the post of a Law Officer shall be made by the Governor in Council either by recruitment from the Bar or by transfer of a Judicial Officer.
(4) Qualifications: (1) No person shall be eligible for appointment:
(a) as Government Pleader, Public Prosecutor or Crown Prosecutor if he is not an Advocate of a High Court in British India, and........
(b) If in case the appointment is by transfer of a Judicial Officer, he has not been such officer for at least five years at the date of his appointment."
92. The first respondent was enrolled as an Advocate of this Court on 16-3-1936. He was practising as a lawyer at Madura when he was appointed as District Munsiff on 3-12-1941. He held the office of the District Munsiff till 5-4-1947. Thereafter he filled various posts, the details of which are not relevant for the present discussion. The order appointing him as Government Pleader is dated 22-6-1960, at a time when he was holding the office of the Principal Judge, City Civil Court, Madras. The order of appointment is as follows:
"Sri A. Alagiriswami M. A. B. L. is appointed to be Government Pleader, Madras, with effect from 1st July 1960 on his retirement from the Madras State Higher Judicial Service". On 4-7-1960 the following G. O. was Passed. "The Madras Government have directed that where a Member of the Madras State Higher Judicial Service is required to retire as a condition of his appointment to an office, which does not carry any benefits by way of pension or gratuity and to which the State Government consider, that it is in the public interest that be should be appointed he shall he granted the retirement benefits to which he would have been entitled, if he had invalided from the service."
93. The stand taken by the State Government is that the first respondent was recruited to the office directly from the Bar and not by way of transfer from Judicial Service. It is obvious that the appointment is not by transfer because the first respondent retired from service with effect from 11-7-1960. There can be an appointment by transfer only if a Judicial Officer in service is appointed to the post of Government Pleader. Further the appointment cannot possibly be sustained on the ground of transfer from Judicial Service as the Government Order makes it clear that no judicial officer "can be eligible to be appointed by transfer unless he had been such officer for at least five years at the date of his appointment.
The first respondent had only functioned as a District Munsiff and his career as a Judge of the City Civil Judge was far less than the period of five years prescribed. But the State Government contends that on 1-7-1960 after retirement from the Stale Higher Judicial Service the first respondent became entitled to practice' as an advocate, he being a person already in the roll of this court as an advocate having been enrolled as early as 1936.
The contention of the Petitioner is that the prescribed qualification under the G. O. is not that the appointee should merely find a place in the roll of the advocates maintained by the High Court, but that he should have been a practising advocate which term necessarily implies that the appointee should have been sufficiently in active practice so as to be a fit and proper person to hold the responsible post of the Government Pleader. The language of the G. O, prescribing the qualification for a direct recruit from the Bar is that he must be an Advocate of the High Court in British India. There are no qualifying words to warrant the view that the advocate must be what may be called a practising advocate or an active practitioner.
94. The learned counsel for the petitioner contended further that only aa Advocate practising in a High Court can be eligible to be appointed to the office. According to this argument even practitioners in the moffusil are supposed not to be eligible for being so appointed. It was submitted on behalf of the petitioner that the object of insisting upon an advocate practising in the High Court to be appointed was that the appointee should have some familiarity with the work in the High Court, in view of the functions to be performed by the Government Pleader.
95. The question that has therefore to be considered is what is the proper interpretation to be placed upon the word "advocate of a High Court in British India occurring in the qualification rule. Section 2(1) of the Indian Bar Councils Act defines advocate as meaning an Advocate in the roll of the advocates of a High Court under the provisions of the said Act. Section 14 of the Act provides that an Advocate in the roll shall be entitled as of right to practice. It is obvious that a mere entry in the roll of advocates is sufficient to clothe the Person, whose name is entered in the roll of a statutory right to practice, Provided there is no impediment preventing the person from practising by reason of his employment otherwise.
96. In Profulla Ranjan Das v. Chief Justice and Judges of Patna High Court, 58 Ind App. 38 : (AIR 1931 PC 22(2)) the Judicial Committee held that an advocate whose name has been entered in the roll of advocates Prepared by the High Court under Section 8(2) of the Indian Bar Councils Act of 1926 has a statutory right under Section 14(1) to practise in the High Court. In that case Mr. P. R. Das was a Judge of the High Court of Patna. Before elevation to the Bench he was an Advocate of that court. In February 1930 he retired from his Office as Judge on medical grounds on pension. After his retirement ho applied to the High Court to have his name entered on the roll of Advocates. The prayer was granted but the following rider was added:
"In view of the fact that he was a permanent Judge of this Court, the Judges refuse to allow him to appear in the Courts of this Province".
Objection was taken before the Judicial Committeo regarding this restriction imposed upon Mr. P. R. Das. Their Lordships held that the appellant having been undoubtedly entered on the roll of Advocates, gained a statutory right under Section 14 and that it was not possible to impose restrictions upon such a statutory right.
97. The word "advocate of a High Court" contained in the 1932 G. O. has got to be given the same meaning as that expression has under the Indian Bar Councils Act. I construe the words as meaning an advocate in the roll of a High Court. There is nothing implicit in the G. O. to warrant the imposition of a further qualification, namely, that the person should be practising the profession besides merely being in the roll as an advocate. Nor is there any warrant to read further qualifying words that the appointee should have been in active practice or well versed in the work of the High Court. It is no doubt desirable that persons with experience of court work alone should be appointed to the responsible post of a government pleader. But that is not the same thing as to say that the G. O., prescribes the existence of such experience as a necessary condition of eligibility to be appointed to the post.
98. Even, assuming that it is possible to read the word "advocate" in the qualifying G. O. as connoting a practising advocate, it cannot be said that the first respondent was not one such person on 1-7-1960.
99. A practising Barrister is defined as follows in Vol. III, Halsbury's Laws of England, at p. 59:
"A practising barrister is (1) one who is entitled to practice and who holds himself out as ready to do so, not being otherwise employed in a whole-time occupation, or (2) a barrister whose regular occupation is that of editor or reporter of any series of law reports entirely written and edited by barristers for the use of the legal profession" (Regulation of the General Council of the Bar, 1950).
100. A practising advocate or barrister is therefore one who has a right to practise and who is ready and willing to accept briefs when offered. A brief-less barrister 'or an advocate without work is as much in practice of the profession as his more fortunate colleague who happens to have more engagements than he can possibly fulfil usefully. It is a misnomer to call an advocate without brief as one not practising the profession.
101. In Halsbury's Laws of England, Vol. III page 29 Section 6 deals with eligibility of a barrister for judicial and other offices in England. The office of Lord of Appeal In Ordinary can only be filled by a person who has held for not less than two years certain high judicial offices or has been for not less than fifteen years a practising barrister in England or Ireland or a practising Advocate in Scotland. Only barristers of not less than 10 years standing can fill the offices of Judge of the' High Court, Vice Chancellor of the County Palatine of Lancaster, Judge of the Salford Hundred Court Deputy, Chairman of the quarter sessions for the county of London and other posts.
A judge of the Provincial Court of Canterbury and York must either have been a judge of the High Court or a barrister who has been in actual practice for ten years. A cursory reference to these various qualifications prescribed for barristers to hold one or other of the several posts shows that in some cases the prescribed qualification is the number of years standing of the barrister, in some Other cases the qualification is that the barrister should be a practising barrister, and in other instances he must be a person in actual practice.
It may be that there are shades of difference between the various qualifications of a barrister, namely, a barrister with a number of years standing, a practising barrister and a barrister in actual practice. But where the qualification prescribed as in the G. O. of 1932 is that a person should be an advocate of the High Court it is not possible to read anything more in it than that the advocate should be on the roll of the High Court and be entitled to practise as of right under the Indian Bar Councils Act.
The mere existence on the roll of the High Court may not by itself be sufficient if the person is under any legal impediment, as a result of holding a full time office, to practise the profession of an advocate. Advocates enter judicial service, and during the period of such service they are disentitled to practise the profession of the Advocate. After retirement from the service, subject to other restrictions prescribed by law, such as the restriction imposed by the Constitution on retired Judges of the High Court, the person is free to resume his prior position at the Bar which he Occupied before the commencement of his judicial career. I am of opinion that on 1-7-1960 the first respondent was an advocate of the High Court of Madras entitled as of right to practise as an advocate his judicial career having become extinct by reason of his retirement from the State Higher Judicial Service, and that his appointment as Government Pleader as a direct recruit from the Bar is in consonance with the G. O. of 1932.
102. Mr. G. Vasantha Pai, the learned Counsel for the petitioner, contended that the first respondent was appointed by order dated 22-6-1960 at a time when he was actually holding a judicial office, and that therefore the appointment was bad. The argument of the learned counsel was that the ap~ pointment of the first respondent on 22-6-1960 cannot be held valid as one by way of transfer from judicial service as the incumbent was not a judicial officer within the meaning of the G. O. he not having held five years service as a subordinate judge or City Civil Judge, nor can it be supported as a recruitment from the Bar as on that date he was not entitled to practise being in office as a Judicial Officer.
This argument will be unexceptionable if the appointment itself took effect oa 22-6-1960. But the order of appointment states that it shall take effect from 1-7-1960. There is nothing wrong in the appointing authority issuing an order of appointment on a particular day to take effect Prespectively from a future date. The question that has therefore to be considered is whether the eligibility of the candidate appointed is to be determined as on the date of appointment or as on the date from which the appointment is to take effect. The contention urged on behalf of the petitioner was that it is only the date of appointment that counts in the matter of eligibility of the appointee and such eligibility should not be made to depend on uncertain future events as on a prospective date.
I do not agree with this contention. The appointment order having been issued so as to take effect from 1-7-1960 if the appointee failed to be qualified on 1-7-1960 the order becomes automatically bad. If oa the other hand on the date 1-7-1960 when the appointment takes effect he fulfils all the qualifications necessary for the appointment, the appointment order is good, as the order of appointment can well be taken to have been issued on 1-7-1960 only. The fact that the order was dated a few days prior to 1-7-1960 cannot and does not vitiate the order of appointment, if otherwise it is regular and proper and in accordance with, the G. O.
103. The learned Advocate General relied upon the decision in (S) and contended that the crucial date on which the
legibility of the appointed candidate should be considered was the date on which the appointment took effect. In that case the State Government appointed one Arumuga Mudaliar, who was an Assistant Secretary to the Government as Inspector General of Registration. The Order of appointment was dated 17-3-1954 but it was to take effect from 16-4-1954.
On the date when the appointment order was issued, namely, 17-3-1954 it was incumbent on the State Government to consult the Public Service Commission before making the appointment. But as a matter of fact the State Government made the appointment without such consultation. When the attention of the State Government was drawn to this feature of irregularity in the appointment of Arumuga Mudaliar the Government published G. O. 499 on 8-4-1954 excluding the post of the Inspector General of Registration from the purview of the Public Service Commission with retrospective effect from 1-3-1954.
The petitioner in that case prayed for the issue of a quo warranto questioning the validity of the appointment of Sri Animuga Mudaliar. Serious objection was raised on behalf of the petitioner as regards the G. O. passed by the Government exempting the office from the purview of the Public Service Commission and giving retrospective effect to that G. O. The power of the Government to issue such a G. O. was not in question. A Bench of this Court consisting of Rajagopalan and Raja-gopala Ayyangar, JJ. observed as follows at p. 19:
"If the Government had the power of issuing another notification appointing respondent 1 to the office simultaneously with the publication of G. O. No. 499 we do not see any legal obstacle in the way of our holding that, even if the Govemment had no power to validate an appointment retrospectively, on the date when the appointment took effect, it was valid by reason of the amended regulation passed on 8-4-1954. We are therfore of the opinion that G. O. No. 499 of 1954, rendered the consultation of the Public Service Commission in the matter of the appointment unnecessary, and the appointment of respondent 1 which took effect only after 8-4-1954 was valid."
This decision is therefore clear authority for the position that the validity or otherwise of any impugned appointment has got to be adjudged only as on the date when the appointment takes effect. I therefore hold that the first respondent was duly qualified to be appointed as Government Pleader on 1-7-1960 the date on which his appointment took effect, and it is immaterial to consider as to whether he was so qualified or not on the date, 22-6-1960 when the Order of appointment was issued.
104. G. O. 2962 of 10th August 1932 has no statutory force. This aspect of the matter has been considered very fully in the judgment just now delivered and there is scarcely anything more on the subject which I need refer to. The learned counsel for the petitioner contended that though the G. O. cannot strictly be called a statutory rule, the State Government in G. O 200 dated 11-1-1951 and G. O. 2606 dated 25-9-1958 pledged itself to follow the principles of G. O. 197 Public dated 20-2-1929 and G. O. 2962 dated 10th August 1932 in the matter of appointing Law Officers, and that it was not open to the Government to take shelter under the non-statutory character of the 1932 G. O. to cover, the violation of the said G. O.
It was also contended that it was incumbent on the State Government to follow the principle of appointment as laid down in the 1932 G. O. so as to avoid arbitrariness of nepotism. Reliance was placed upon the decision in (FB) for the position that even
non-statutory regulations and rules contained in the Board's Standing Orders are binding on the State Government, and that it cannot depart from such rules arbitrarily and capriciously to suit the exigencies of a particular situation. In that case the Government purported to exercise a revisional power over the orders of the Board of Revenue which it did not have as per Board's Standing orders. The exercise of that power by the Government was sought to be justified on the ground that the executive instructions contained in the Board's Standing Orders count at any time be modified and amended and that if the Government had power to bring about such modifications it followed that the Government had power of revision though in terms such power was not conferred upon it. This argument was met in the said Full Bench decision at page 61 (of Mad LJ) : (at pp. 312-313 of AIR) as follows ;
"That the Government or the Board has the power to amend the rule should make no difference, both are bound to dispose of the matters that come up before them in accordance with the rules at the time in force on the subject.......we wish to emphasise the Position, that the decision in any given case must be in accordance with the rules in force on the date of the decision. Otherwise the difference between what may be by way of analogy called Legislative (rule making functions of the Board) and its judicial and quasi-judicial functions would be blurred and the door thrown open to charges of arbitrariness. What we have said about the board also applied to the Government."
The Full Bench case arose out of an appointment of a hereditary village officer. The powers of appeal and revision exercised in pursuance of the Board's Standing order were really quasi-judicial functions. I do not think that the said decision can be cited as an authority to invalidate an administrative order of the State executive on the ground that there was a failure to comply with an administrative rule or direction. If G. O. 2962 dated 10th August 1932 is not a statutory rule, and I hold it is not such a rule, nonconformity with the said G. O. is not a ground on which an application in the nature of a quo warranto can be sustained challenging the validity of the appointment made.
105. The petitioner has challenged the appointment of the first respondent as having been brought about by abuse of power on the part of the appointing authority. It is pointed out on behalf of the petitioner that in the long history of the annals of this court, hitherto only eminent members of the Board have filled the post of Government Pleader, most of whom after a successful career as such Government Pleader were elevated to the Bench. The first respondent was a member of the State Higher Judicial Service who had still a number of years before him to reach the superannuation limit.
The petitioner avers that in 1959 the name of the first respondent was sent for appointment as a High Court Judge but was rejected on the ground of lack of judicial experience. The gravamen of the charge against the appointment is that it is mala fide as the real purpose and object behind the appointment is to enable the first respondent to become a High Court judge, as it would have been difficult for him to be made a High Court Judge if he were to take his chances along with his colleagues in the State Higher Judicial Service, who were senior to him in rank.
106. Mr. T. M. Krishnaswami Iyer, the President of the Madras Advocates' Association, has sworn to an affidavit setting out the gist of what transpired between him and the Honourable the Law Minister at the time when he went on a deputation in this connection along with Mr. Vasantha Pai, the Secretary of the Association. The following extract from his affidavit may be set out:
"The Minister.....added that the deputation was totally wrong if it thought that Sri Alagiriswami had been put in as Government Pleader, with the object of his being finally elevated to the Bench. Asked whether the Government would give an assurance that such appointees would not be routed through the Bar for High Court Judgeship the Minister said he could not give any such guarantee as it is for the Chief Minister to decide whether the appointee's services could be availed of for the Bench or not, and his was only a consultative function."
107. C. M. P. 5393 of 1960 has been taken out by the petitioner requiring the second respondent, the State of Madras, to admit the several facts specified namely;
"1. The Hon'ble Law Minister Sri C. Subramaniam after reading the report of the interview the representatives of the Advocates Association had with him on 12th July 1960 held a press conference on 15th July 1960.
2. At the said Press Conference the Hon'ble Minister clarified certain points and the report of the clarifications which appeared in the Hindu of 16th July 1960 and extracted hereunder is a substantially correct report......."
108. The Honourable the Law Minister has filed an Affidavit. Para 8 of the said affidavit is as follows:
"I am not in a position to disclose any matter relating to the proposals or consultations for appointment of a High Court Judge. Under Article 217(1) of the Indian Constitution the President makes such appointments in consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. Their consultations are confidential and no minister or other officers can disclose details thereof."
Para 9 of the said affidavit reads:
"As already stated the appointment of Sri Alagiriswami as Government Pleader was and is intended for his being Government Pleader acting as such on behalf of the Government and for no other reason. With regard to the allegation that it is intended as a step to make him a High Court judge all that we can say is that was not in consideration or in our mind at all. Neither I nor any other person can make any statement with regard to what the President may be doing at a future date with reference to any appointment to any High Court".
109. The question that has to be considered is whether the appointment of the first respondent can be held to be invalid in law on the ground that the motive for the appointment was to achieve something else which is alleged to be at the back of the mind of the appointing authority. It must be remembered that an order of appointment by the State Executive is purely an administrative matter. The question of bona fide and honest exercise of power has often been discussed and considered where the exercise of the power partakes of a judicial character. It has also been considered in cases where the exercise was of statutory power. The reason for the necessity of considerations of honesty and bona fides in respect of judicial and statutory functions is not far to seek.
No person or Tribunal exercising judicial or quasi judicial function can step out of the Path of honesty as the moment such a thing is done his function ceases to be judicial. Good faith is an integral part of the duty to act judicially. So also in cases of exercise of statutory power if the power is exercised obliquely for a collateral purpose which, is unauthorised by the statute under colour of the exercise of the statutory power it will amount to an abuse or misuse of statutory power. But this doctrine can hardly have any application to a case where the discharged function is nothing but a simple administrative act.
110. I am of opinion that even as an illegal or ultra vires act cannot be saved because of praise-worthy motives, a lawful administrative act cannot be upset by the gravest charge of what may parado xically be called scrupulously unscrupulous purpose. There may be cases in which a particular act by act authority may be called in question on the ground that it is a sham or pretence, and that it is a mere cloak to disguise the true state of affairs. The point may be illustrated as follows.
A person may be appointed as Government Pleader not with the object that he should hold the office and discharge the functions appertaining to the office, but with a view to enable him to draw the remuneration and fees resulting from the office, while the duties are discharged by another person, In such circumstances the impugned act itself being merely colourable and non-est cannot be sustained or supported when called in question. But so long as the act is genuine in the sense that it was intended to be done it cannot be called colourable or sham because of the apprehended existence of motives which promoted the appointment.
111. In this context reference may be made to the decision of the Supreme Court in K. C. Gaja-pathi Narayan Deo v. State of Orissa, where the doctrine of colourable legislation was
discussed. The Orissa Agricultural Income-tax Amendment Act of 1950 was impugned as not being a bona fide taxation statute at all, but as a colourable piece of legislation the real object of which was to reduce by artificial means the net income of the intermediaries, so that the compensation payable to them under the Act might be cut down to as low a figure as possible. Dealing with, this Act Mukherjee, J. observed as follows at page 10;
"It may be made clear at the outset that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand if the legislature lacks competency, the question of motives does not arise at all. Whether a statute is constitutional or not is thus always a question of power.... The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise".
112. The case in (1925) AC 338 is also in point. In that case the Municial Council of Sydney had authority under statute to resume lands for certain purpose. Certain lands belonging to the residents of the locality were resumed and the act of resumption was challenged on the ground that it was not warranted by the statutory power vested in the Council. It was found as a fact that the resumption proceedings were taken by the council with the object of enabling the council to get the benefit of increment in the value arising from the extension and that resumption for such a purpose was not withing the ambit of the authority committed to the council. At page 343 Duff, J. observed as follows:
"A body such as the Municipal Council of Sydney authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, aud if it attempts to do so, the courts will interfere. As Lord Lore-burn said, in Clanricarde (Marquess) v. Congested District Board Ireland, (1914) 79 JP 481 : "Whether it does so or not is a question of fact".
Where the proceedings of the council are attacked upon this ground, the party impeaching those proceedings must of course, prove that the council though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object."
This case was a case of exercise of statutory power for a purpose not authorised by the statute concerned.
113. In the case, 1905 AC 426 the Westminster Corporation had power to construct public conveniences. The Corporation designed to have underground conveniences so that the subway leading to them may provide a means of crossing a busy street. Possibly the Corporation aimed at two birds with one stone. This was challenged on the ground that the real object was the provision of a crossing and not of public conveniences. The Court refused to intervene. Lord Macnaghten said at page 432:
"It is not enough to show that the Corporation contemplated that the public might use the subway as a means of crossing the street. In order to make out a case of bad faith, it must be shown that the corporation constructed the subway as a means of crossing the street under colour and pretence o[ providing public conveniences not really wanted".
This is also a case of exercise of statutory power and the question was whether the power was transgressed in the garb of a proper exercise of the power.
114. But motive is different from purpose. In Wade and Phillips Constitutional Law, fifth Edition at page 307, it is observed as follows;
"A distinction must be drawn between purpose and motive. Where an exercise of a power fulfils the purposes for which the power was given, it matters not that those exercising it were influenced by an extraneous motive. The distinction is best illustrated by reference to decided cases. The court refused to intervene when the Brighton Corporation improved a road which it had power to improve for the public benefit, although the motive of the improvement was largely to induce an automobile club to hold races upon it: The King v. Brighton Corporation; ex parte Shoesmith, 1907-96 LT 762."
115. Even in cases where the exercise of a statutory power becomes vitiated on the ground of its having been exercised for a different or a collateral purpose other than that for which the statute entrusted the authority with power, the question bristles with difficulties where there is plurality of purposes, S. A. De Smith in his book on Judicial Review of Administrative Action has dealt with it at pages 194 to 196. The learned author says that there are at least 5 tests that a court might apply to answer this difficult question:
1. What was the true purpose for which the power was exercised. If the actor has in truth used his power for the purpose for which it was conferred, it is immaterial that ho was thus enabled to achieve a subsidiary object.........
2. What was the dominant purpose for which the power was exercised? If the actor pursues two or more purposes where only one is expressly or impliedly permitted, the legality of the act is determined by reference to the dominant purpose. ....
3. Would the power still have exercised if the actor had not desired concurrently to achieve an illicit purpose?. This test has been applied by the High Court of Australia; but it has the serious disadvantage of requiring the court to embark upon a course of speculation for which it is ill-equipped.
4. Was any of the purposes pursued an authorised purpose? If so, the presence of concurrent illicit purposes does not affect the validity of the Act. This test appears to have been applied in only one English case; but although it may seem to be inferior to the 'dominant purpose test' it has the advantage of avoiding the need for attempting to measure the relative weights of various motives, and it escapes the unreality of the 'true Purpose' test. It is also significant that it is the test employed in French and Italian administrative law. It is capable of being expressed in another form; if the practical effect of the exercise of a power substantially fulfils the statutory purpose, and was intended by the actor in do so, it is immaterial that the actor had other objects in view that he ought not to have entertained.
5 Was any of the purposes pursued an unauthorised purpose? If so, and if the unauthorised purpose has materially influenced the actor's conduct, the power has been invalidly exercised because irrelevant considerations have been taken into account. The effect of applying such a test is directly opposed to that produced by the proceeding test. This is a curious state of affairs, for the concepts of improper purpose and irrelevancy are intimately related and are often analytically indistinguishable".
116. The legal position governing this aspect of the matter may be summed up thus. Judicial and quasi judicial decisions can be challenged on the ground that they are improper decision if rendered without good faith or honesty. Anybody entrusted with the duty of deciding a matter owes an elementary duty, never to be forsaken, to be fair and honest. Authorities exercising statutory power should do so genuinely and legitimately to fulfil the purposes of the statute without availing of it for other purpose beyond the statute. A wrong use of the statute, palpable or hidden, will be open to attack on the ground of abuse of power. The exercise of the power, if warranted by the statute, cannot become bad, by any motive imputed to the authority, or by any concurrent illicit purposes achieved along with the real purpose. The veil can always be lilted to expose a mere sham or pretence.
117. What, then, is the present position arising out of the facts of the case. The first respondent has been appointed in pursuance of a G. O. whether (the G. O., has statutory force or not, there is no technical flaw in the appointment in the terms of the G. O. It is impossible to contend that the appointment is colourable in the sense that it is sham or non-est. The fact that an appointment of the kind is unusual cannot affect the validity of the appointment.
118. I am of Opinion that questions of alleged motive and purpose supposed to constitute the background for the order of appointment of the first respondent are wholly foreign to the scope of the present proceedings before us. As observed by Lord Denning in his Hamlyn Lectures on Freedom under the Law:
"No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do".
Acts of favouritism by way of backdoor appointment and deviations from fair play and justice are not uncommon features in the administration of any Government, in any country. But the jurisdiction of the courts is not the role of a sentinel of the qui vive to guard against the vagaries of the State executive. Prerogative Writs which this court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to.
The province of this court in a quo warranto proceeding is to determine whether there has been usurpation of a public office and not to search the conscience of the appointing authority to ascertain his motive. If (sic) therefore not necessary for me to say anything more than that the impugned order of the appointment of the first respondent has not transgressed any rule, regulation or law to afford a foundation for the issue of relief in a quo warranto proceeding.
119. I agree that the writ petition should be dismissed, but without costs.