Upbraiding the Maharashtra Government for keeping the post of Advocate General vacant for the past eight months, the Bombay High Court has directed the Devendra Fadnavis dispensation to file an affidavit on or before December 13 as to when it would make an appointment for the Constitutional post.
“We are of the view that if the State Government fails to appoint the Advocate General by exercising power under clause 1 of Article 165 of the Constitution of India, it will adversely affect the administration of justice as learned Advocate General plays an important role in the administration of justice,” a HC bench of Justices Abhay Oka and Anuja Prabhudesai noted.
Hearing a writ petition filed by Congress MlC Sanjay Dutt seeking a writ of mandamus from the court enjoining the court to appoint State Advocate General, the two-member HC bench directed the state government to file affidavit by December 13 setting outer limit within which the appointment would be made as stipulated under clause 1 of Article 165 of the Constitution.
The judges posted Dutt’s petition for a further hearing on December 14.
It may be recalled that the BJP-led Maharashtra Government appointed the Advocate General on November 18, 2014. However, the Advocate General resigned from his post on June 9, 2015. On October 6, 2015, the Maharashtra Government appointed Shrihari Aney as the new Advocate General.
However, Aney resigned on March 23, 2016, following a controversy over his controversial statement espousing the cause of separate Statehood for Marathwada region. After Aney resigned from his post, the State Government appointed Additional Advocate Rohit Deo as the acting Advocate General.
“We may note there that the orders passed by the Acting Advocate General under section 15 of the Contempt of Courts Act, 1971 have been subject matter of a challenge in this court on the ground that the learned Acting Advocate General is not the Advocate General appointed in accordance with clause 1 of the Article 165 of the Constitution. This situation has caused an enormous embarrassment to the learned Additional Advocate General which could have been avoided….. “ the HC bench noted.
Alluding to a request made by the Acting Advocate General before the court on November 28 that the State Government be granted four weeks’ time to initiate action with regard to the appointment of a new Advocate General, the HC noted in its order passed on the same day, “However, there is no guarantee that the Advocate General will be appointed in accordance with clause 1 of Article 165 of the Constitution within specified time”.
Nagendra Rai, senior advocate of SC and former Acting Chief Justice of Patna High Court, had appeared for the petitioner along with advocate Ashish Mehta, before the High Court on November 28.
Dutt had among other things sought a direction to the Maharashtra government to appoint a regular Advocate General in place of the current acting Advocate General.
Dutt had also stated that court should declare that the post of acting Advocate General was unconstitutional, and that the appointment of Advocate General should be made only as per the provisions of Article 165 of the Constitution. He had clarified that he was not questioning the integrity and professional capability of the acting Advocate General Rohit Deo, but said he wanted a direction to the government to follow the Constitutional provisions.
Deo was functioning as an acting AG for the last seven months, while under the Constitution no post of acting AG existed, Dutt hd contended in his petition.