WP/317/2002 of SHRI JOS PETER D'SOUZA,MAPUCA-GOA,403507. Vs MR.VILAS P.THALI AND ANR. on 20 December 2002

WRITPETITION NO.317 OF 2002

Mr. Jos. Peter D’Souza,1/S2 Garden Centre (II),Near Police Station,Mapuca, Goa 403 507... PETITIONERVERSUS1. Mr. Vilas P. Thali,having his office atS-3, Mandovi Apartments,Dr. Dada Vaidya Road,Panaji, Goa;2. The Law Secretary,Government of Goa,Secretariat,Panaji, Goa;3. The State of Goa,through Chief Secretary,Government of Goa,Secretariat,Panaji, Goa...RESPONDENTS

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Petitioner in person.Mr. S.K. Kakodkar, Sr. Advocate, with Mr. Joel J.D’Souza, Advocate, for the Respondent No.1.Mr. A.N.S. Nadkarni, Advocate General, with Mr. H.D.Naik, Addl. Government Advocate,for the RespondentsNo.2 and 3.

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ORALORDER

Heard the Petitioner in person, Mr. S.K.Kakodkar, Sr. Advocate, for the Respondent No.1 andthe learned Advocate General for the Respondents No.2 and 3.

2. Rule.

3. In the meantime, in view of the factsand circumstances revealed at this prima facie leveland also in view of the admission on behalf of theState,the post of Additional Advocate General is nota Constitutional post as envisaged by Article 165 ofthe Constitution of India, and as such, the factsrevealed to the Court give rise to anxiety andapprehension in our minds regarding the manner inwhich the non-Constitutitonal post is being equatedwith the Constitutional post by the State Governmentin relation to the treatment given and thefacilities afforded to Respondent No.1 in hiscapacity as Additional Advocate General, includingin respect of the vehicle, use of red light,structure of payment of fees and availability ofjuniors at the cost of public exchequer.

We accept the statement of the learnedAdvocate General that the State Government would becertainly looking into all these aspects so as torealign the entire functioning of the Office of theRespondent No.1. It is stated on behalf of theState that the Respondent No.1 has stopped use of red light on his official vehicle in view of theclear prohibition regarding the relevant aspect inNotification issued by the State Government.Similarly, we accept the statement of the learnedAdvocate General that the bills regarding payment offees of Respondent No.1 are withheld for the purposeof scrutiny. We may note that such scrutiny shallalso extend to the fees not only paid to RespondentNo.1 in this regard, but also to his juniors intheir official capacity.

So far as Circulars issued on behalf of theState Government are concerned, we have no doubtthat Circular dated 6-02-2002 is very much intendedto streamline the administration of the Offices ofthe Law Officers in general. However, what it showsis that complete go-by is given by the StateGovernment to the Constitutional functionary such asAdvocate General while issuing certain directionsand to that effect the said Circular shall bere-considered. Similarly, the State Governmentwould be well advised to withhold the subsequentCirculars dated 2-04-2002 and 25-02-2002 along withthe Circular dated 29-11-2001 so far as theysidetrack the authority of the Advocate General.

With regard to the acts of Respondent No.1

purported to be under Section 24 of the CriminalProcedure Code are concerned, it is needless tomention that he cannot act as Public Prosecutoruntil and unless authorised by the State Governmentby due Notification contemplated by the saidprovisions.

In this regard we may further note that thePetitioner is at liberty to move the StateGovernment in the meantime to make hisrepresentation regarding the aspects involved inthis Petition so as to get necessary details for hispurposes and the State Government shall makeavailable all the relevant files and bills of feesetc. to the Petitioner for relevant scrutiny inthat regard. All contentions of all the parties arekept open. Matter to come up on Board aftterVacation.

Authenticated copy to be provided to allthe concerned parties.

P.V. KAKADE,J.

P.V. HARDAS,J.