S.Kasiramalingam Vs. the Chief Secretary, Government of Tamil Nadu and Another - Court Judgment

Excerpt:
(prayer : petition filed under article 226 of the constitution of india praying for issuance of a writ of quo warranto directing the second respondent to show cause under what authority the second respondent holds the post of advocate general for the state of tamil nadu and to oust him from the office of advocate general for the state of tamil nadu, notified in g.o.ms.no.431/law officers/23rd may 2011 (no.1/pulo/11(a-1)/2011 on the ground that the second respondent has not been qualified for appointment of advocate general, appointed in violation of article 165(1) r/w 217(2)(b) with appended explanation (aa) and also under article 165 r/w article 319(d) of the constitution of india.) k.n.basha, j. and n.paul vasanthakumar, j. the writ petitioner, a practising advocate, has come forward.....

Judgment:

(Prayer : Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Quo Warranto directing the second respondent to show cause under what authority the second respondent holds the post of Advocate General for the State of Tamil Nadu and to oust him from the office of Advocate General for the State of Tamil Nadu, notified in G.O.Ms.No.431/Law Officers/23rd May 2011 (No.1/PULO/11(a-1)/2011 on the ground that the second respondent has not been qualified for appointment of Advocate General, appointed in violation of Article 165(1) r/w 217(2)(b) with appended explanation (aa) and also under Article 165 r/w Article 319(d) of the Constitution of India.)

K.N.BASHA, J. and N.PAUL VASANTHAKUMAR, J.

The writ petitioner, a practising Advocate, has come forward with this writ petition challenging the appointment of the second respondent herein as Advocate General of the State of Tamil Nadu, with a prayer to issue a Writ of Quo Warranto directing the second respondent to show cause under what authority he is holding the post of Advocate General of the State of Tamil Nadu and to oust him from the office of the Advocate General of the State of Tamil Nadu, notified in G.O.Ms.No.431/Law Officers/23rd May 2011 No.1/PULO/11(a-1)/2011 on the ground that the second respondent is not qualified for appointment as Advocate General and that he is appointed in violation of Article 165(1) r/w 217(2)(b) with appended explanation (aa) and also under Article 165 r/w Article 319(d) of the Constitution of India.

2.   During the pendency of this writ petition, another practising Advocate by name Mr.Mahaveer Shivaji, filed M.P.No.3 of 2012 with a prayer to implead him as the third respondent in the writ petition stating that an important question of constitutional validity is raised by him including fixing of upper age limit for the post of Attorney General of India as well as Advocate General of States.

3.   When the writ petition was posted for admission, Mr.Arvind Pandian, learned Additional Advocate General and Mr.S.Venkatesh, learned Government Pleader, have taken notice for the first respondent and Mr.R.Muthukumarasamy, learned Senior Counsel has taken notice for the second respondent.

4.   As the facts involved in this case are not disputed, learned Senior Counsel for the second respondent, the learned Additional Advocate General and the learned Government Pleader appearing for the first respondent submitted that they need not file any counter-affidavit, and that they will make their legal submissions.

5.   Pursuant to the above submission, the learned petitioner, who appeared as party-in-person; learned impleading petitioner, who also appeared in person; Mr.PH.Aravindh Pandian, learned Additional Advocate General and Mr.S.Venkatesh, learned Government Pleader appearing for the first respondent; Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for second respondent made their submission elaborately.

6.   The learned petitioner argued at length by taking us through the relevant constitutional provisions as well as the constitutional debate in respect of the amendment of the provision under Article 319(d) of the Constitution of India. The learned petitioner, who appeared as party-in-person, mainly raised two grounds in this petition as follows :

(i) The second respondent, having been appointed as Advocate General under Article 165 of the Constitution of India, must satisfy the qualification prescribed under Article 217(2)(b), i.e., ten years of continuous practice as an Advocate of a High Court immediately preceding his appointment as Advocate General.

(ii) The second respondent, who held the post of Member of Tamil Nadu Public Service Commission (hereinafter referred to as "TNPSC") from 16.06.2004 to 26.03.2008, is prohibited from accepting any employment either under the Government of India or under the Government of Tamil Nadu as per provision under Article 319(d) of the Constitution of India.

7.   In order to substantiate the above two contentions, the learned petitioner/party-in-person has taken us through the relevant provisions, namely, Articles 165, 217 (2)(b) as well as 319 of the Constitution of India. The learned petitioner submitted that the provisions of Article 217(2)(b) has been amended by 44th Amendment Act, which came into force on 20.06.1979 and consequently, the earlier judgments rendered based on the then existing article are not relevant. The learned petitioner also submitted that the second respondent, having been appointed as Member of the TNPSC in the year 2004 and served till he resigned the said post in the year 2008, suspended his practice during the said period and only after resignation of that post in 2008, he resumed his practice, which has been certified by the proceedings of the Bar Council of Tamil Nadu. Therefore, he was not having continuous practice of 10 years as an Advocate in the High Court, immediately preceding his appointment as Advocate General of Tamil Nadu. The said fact having not been disputed, the second respondent is ineligible to be appointed as Advocate General of Tamil Nadu. In support of his contention, learned petitioner cited certain decisions.

8.   The learned petitioner also submitted that as per Article 319(d), the second respondent is not entitled to be appointed in any post, including the post of Advocate General of Tamil Nadu, which can be treated only as an 'employment', as the post of Advocate General carries performing certain official duties and receiving remuneration, and the person appointed as Advocate General cannot refuse to give advice to the Government, if sought for, like an ordinary Advocate and he can be removed at the pleasure of the Governor at any time, and as such, he is bound to obey the orders of the Government. The Advocate General also cannot appear against the Government. Therefore, the Government has got control over the post of Advocate General and there exists master-servant relationship between the Advocate General and the State Government. The learned petitioner further submitted that even assuming that there is no master and servant relationship, the second respondent is getting remuneration from the Government and the same having not been denied, he is disqualified from being appointed as Advocate General after serving as the Member of the TNPSC as there is constitutional prohibition under Article 319(d).

9.   In support of his contentions, the learned petitioner placed reliance on the dictionary meaning of the words "employment" and "office-of-profit" in P.Ramanatha Iyer's "The Law Lexicon", (The Encyclopaedic Law Dictionary); "Constitutional Law of India" - A Critical Commentary written by Mr.H.M.Seervai; and "Shorter Constitution of India" written by Mr.D.D.Basu.

10.  After placing reliance on the above said decisions, learned petitioner further submitted that the decision of the Rajasthan High Court in Dr.Chandra Bhan Singh V. State of Rajasthan reported in AIR 1983 SC 149 was rendered without reference to the purpose and object of the Constitution of India. It is also urged by the learned petitioner that the said judgment was rendered by a single Judge of the Rajasthan High Court and as such, the same is not binding on this Court.

11.  Mr.Mahaveer Shivaji, learned impleading petitioner in M.P.No.3 of 2012, who is also a practising Advocate, put forward the following contentions :

(i)   The second respondent, having held the constitutional post of Member of TNPSC under Article 316 of the Constitution of India, is eligible only for appointment as the Chairman or any other Member of the Union Public Service Commission (hereinafter referred to as "UPSC") or as the Chairman of that or any other State Public Service Commission, and as such he is prohibited for any other employment/appointment under the Government of India and Government of a State.

(ii) Article 319(a) and (d) shall be read together. The Advocate General post is not higher than the post of Member of Public Service Commission. The term of the TNPSC Member is a fixed one, whereas, the Advocate General post is at the pleasure of the Governor, i.e., on the basis of the advice given by the Council of Ministers.

(iii)  The Member of the Public Service Commission cannot be removed without the leave of the Supreme Court of India and certain procedures have to be followed for the removal, which is stated in Article 317 of the Constitution of India, whereas, no such procedure is contemplated for removal from the post of Advocate General.

(iv)As per Article 217(2)(b), for becoming an Advocate General, one shall have at least ten years of practice as an Advocate of a High Court or of two or more such Courts in succession. The learned impleading petitioner emphasised that the said provision contemplates practice of ten years in the High Court itself and not in the mofussil courts. According to the impleading petitioner, the second respondent is not having ten years of continuous practice immediately preceding his appointment as Advocate General in the High Court and as such, he is ineligible for appointment to the post of Advocate General.

(v) It is also contended that for appointment as Advocate General, a person must have the eligibility to be appointed as High Court Judge and for being appointed as Attorney General, a person must have the eligibility to become a Judge of the Supreme Court and as per the Constitutional provisions, a person cannot become a High Court Judge after 62 years and as Supreme Court Judge after 65 years. Thus, there must be an upper age limit for the above two posts.

12.  Per contra, the learned Government Pleader appearing for the first respondent submitted that the second respondent is having more than twenty-four years of Bar experience as he enrolled as an Advocate before the Bar Council of Tamil Nadu in the year 1981 bearing Enrollment No.MS 32/1981 and he suspended his practice from 16.06.2004 to 26.03.2008. There is no requirement to have ten years of continuous practice in the High Court, immediately preceding appointment to the post of Advocate General, and it is sufficient if the person to be appointed as Advocate General has continuous practice for a period of ten years. The learned Government Pleader also submitted that Hon'ble Mr.Justice V.R.Krishna Iyer, the former Judge of the Supreme Court of India, before being elevated as the Judge of the Kerala High Court, was elected to the Kerala Legislative Assembly in the year 1952 and he became a Minister in the Government of Kerala in the year 1957 and served as Minister of Law, Power, Prisons, Irrigation and Social Welfare until 1959. The Hon'ble Judge was sworn-in as the Judge of the Kerala High Court on 02.07.1968, i.e., before completion of ten years on resumption of practice and later on was elevated to the Supreme Court of India in the year 1973. The said instance clearly establishes the fact that ten years of continuous practice just prior to elevation as a Judge of the High Court is not required for a Member of the Bar. The learned Government Pleader also submitted that the writ petition is filed by the petitioner only due to personal grievance as he was not given the post of Special Government Pleader, instead, he was appointed as Government Advocate, from which post, he subsequently resigned.

13.  Mr.R.Muthukumarasamy, learned Senior Counsel appearing for the second respondent argued that the second respondent, before being appointed as Advocate General of the State of Tamil Nadu, has put in twenty-four years of Bar experience and he was eligible to be appointed as Advocate General as he satisfied the eligibility criteria as prescribed under Article 217(2)(b) of the Constitution of India and there is no illegality in his appointment as Advocate General of Tamil Nadu by issuing G.O.Ms.No.431, Public (Law Officers) Department, dated 23rd May 2011. The learned Senior Counsel also submitted that the second respondent having been appointed as the Advocate General of the State of Tamil Nadu, is not in any 'employment' either under the State Government or under the Union of India. The Advocate General post is a constitutional post as per Article 165 of the Constitution of India and he is only receiving retainer fee and fees for individual cases, for which, he has been asked to appear by the Government, and the same cannot be termed as emolument or salary to bring the post under the ambit of 'employment'. Advocate General post is also not a civil post under Article 311 of the Constitution of India. There is no 'Master and Servant' relationship or 'Employer and Employee' relationship between the Advocate General and the State of Tamil Nadu. The relationship between the Advocate General and the State is essentially an 'Advocate and Client' relationship. The Advocate General has to exercise his right independently and give his opinion on legal issues, as and when required. He can resort to private practice, of course, not against the State Government. The learned Senior Counsel cited the decision of the Rajasthan High Court in Dr.Chandra Bhan Singh V. State of Rajasthan reported in AIR 1983 Rajasthan 149, which was approved by the Supreme Court in the decision in State of Uttaranchal V. Balwant Singh Chaufal reported in (2010) 3 SCC 402. The learned Senior Counsel also cited the decision in V.G.Row V. A.Alagiriswamy reported in AIR 1967 Madras 347, wherein, the appointment of Justice A.Alagiriswamy, a Judge of this Court was challenged. The said judgment of this Court was approved by the Supreme Court in the decision in Prof.Chandra Prakash Agarwal V. Chaturbuj Das Parikh reported in (1970) 1 SCC 182.

14.  The learned Senior Counsel replied to the submissions made by the learned impleading petitioner stating that the issue regarding the upper age limit to be fixed for the Advocate General of the State and the Attorney General of India was already answered by the Supreme Court in the decision of Atlas Cycle Industries Ltd. v. Workmen, reported in AIR 1962 SC 1100, which was reiterated in the decision rendered in State of Uttaranchal V. Balwant Singh Chaufal ((2010) 3 SCC 402). Lastly learned Senior Counsel submitted that the issues raised by the learned party-in-person as well as the learned impleading petitioner are already decided by various decisions rendered by the Supreme Court as well as various High Courts and as such, the writ petition and impleading petition are liable to be rejected. In support of his contentions, learned Senior Counsel also cited the following decisions :

(1) Bhadreswar Tanti V. S.N.Choudary reported in AIR 1985 Gauhati 32 ;

(2) Hargovind Pant V. Dr.Raghukul Tilak reported in (1979) 3 SCC 458 ;

(3) Joginder Singh Wasu V. State of Punjab reported in (1994) 1 SCC 184 ;

(4) Mahendra Nath Rai V. Virendra Bhatia and Ors reported in AIR 2004 All 133 ;

(5) Mahesh Chandra Gupta V. Union of India reported in (2009) 8 SCC 273 ; and

(6) An unreported order of the Delhi High Court in D.K.Sharma V. Union of India and Others (W.P.(C)No.2231 of 2011 dated 08.04.2011).

15.  Mr.PH.Arvindh Pandian, learned Additional Advocate General, who also appeared for the first respondent, cited a Full Bench judgment of the Rajasthan High Court reported in Har Govind Pant V. Chancellor, University of Rajasthan and Others reported in AIR 1978 Rajasthan 72 while adopting the arguments of Mr.R.Muthukumarasamy, learned Senior Counsel for the second respondent as well as the learned Government Pleader.

16.  We have carefully considered the legal contentions put forward by either side and also perused the affidavit filed by the learned petitioner/party-in-person, the affidavit filed by the learned impleading petitioner and the relevant Constitutional provisions as well as the decisions cited by both sides.

17. At the outset, it is to be stated that the facts relating to the enrolment of the second respondent as an Advocate in the year 1981 with enrolment No.MS 32/1981 and suspension of his practice in the year 2004 as well as his resumption of practice in the year 2008 and continuous practice for a period of more than 23 years till 2004 are not disputed by the learned petitioner / party-in-person as well as the learned impleading petitioner.

18.  As the facts are not in dispute, we are called upon to answer the following legal questions involved in this case;

(1)  Whether the second respondent is eligible to be appointed as Advocate General of the State of Tamil Nadu by fulfilling the eligibility criteria, namely, ten years of practice as an Advocate as contemplated under Article 217(2)(b) of the Constitution of India at the time of his appointment as Advocate General under Article 165? and,

(2)  Whether the second respondent's appointment as Advocate General is in any way contrary to Article 319(d) of the Constitution of India, which prohibits employment either under the Government of India or under the Government of Tamil Nadu after he held the post of Member of TNPSC ?

Apart from the above said questions, the impleading petitioner raised additional issues, namely,

(i)   The practice of ten years should be in the High Court as per the provision under Article 217(2)(b) of the Constitution of India and as the second respondent has practised in the Mofussil Courts, it cannot be stated that he has the required practice in the High Court, and as such, he is disqualified for appointment to the post of Advocate General; and

(ii)  The upper age for holding the post of Advocate General of the State and Attorney General of India should be fixed on par with the High Court Judges and Supreme Court Judges respectively.

19.  It is the admitted case of the parties that the second respondent enrolled as an Advocate in the Bar Council of Tamil Nadu in the year 1981 bearing Enrolment No.32/1981; that he actively practised from the date of enrolment till he was appointed as Member of TNPSC from 16.06.2004; that he suspended his practice through his letter dated 15.06.2004 sent to the Secretary, Bar Council of Tamil Nadu; that he resigned the post of Member of TNPSC on 26.03.2008; and that he resumed practice with effect from 27.03.2008. The said facts are available in the information furnished by the Bar Council of Tamil Nadu in its proceedings in ROC.No.1213 of 2012 dated 31.07.2012 filed in the typed-set of papers. The second respondent was appointed as the Advocate General of the State of Tamil Nadu as per Government Order in G.O.Ms.No.431, Public (Law Officers) Department, dated 23.05.2011, which is a constitutional post as per Article 165 of the Constitution of India and the second respondent has been functioning as Advocate General of Tamil Nadu from the said date onwards.

20.  Advocate General of the State is appointed under Article 165 of the Constitution of India, which reads as follows :

"165. Advocate General for the State -

(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State.

(2) It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.

(3) The Advocate General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine."

For being appointed as Advocate General of the State one should be qualified to be appointed as a Judge of High Court. The qualification for appointment as High Court Judge is prescribed in Article 217(2)(b) of the Constitution of India, which reads as follows:        "217. Appointment and conditions of the office of a Judge of a High Court - (1) .....

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and -

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;"

21. The second respondent's practice in the Bar spreads over to twenty four years before his appointment as a Member of TNPSC and thereafter three years of practice before being appointed as Advocate General is not in dispute. The question raised by the learned petitioner and the learned impleading petitioner is that, the second respondent is not having continuous practice of ten years immediately preceding his appointment as Advocate General of Tamil Nadu.

22.  The Hon'ble Apex Court in Mahesh Chandra Gupta V. Union of India reported in (2009) 8 SCC 273 has elaborately dealt with the said question by citing the decisions of various High Courts. It is relevant to incorporate the following paragraphs from the said judgment as hereunder :

"Significance of Explanation (a) and Explanation (aa) inserted in Article 217(2) vide the Forty-fourth Constitutional Amendment Act

46. One of the questions which arises for determination before us is : whether by insertion of Explanation (aa) appended to Article 217(2)(b), the effect of judgment of this Court in Chandra Prakash Agarwal (Prof.) V. Chaturbuj Das Parikh, (1970) 1 SCC 182 stands nullified To answer the above question, we need to refer to Article 124(3) (which has been quoted hereinabove).

47. Article 124 deals with establishment and constitution of the Supreme Court. Article 124(3) prescribes qualifications for appointment of a person as a Judge of the Supreme Court. Article 124(3)(b) inter alia states that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he has been for at least 10 years an advocate of a High Court. This sub-clause has to be read with Explanation II which is similar to Explanation (aa) appended to Article 217(2)(b).

48. Commenting on Explanation II, H.M. Seervai in Constitutional Law of India, 1st Edn., p. 1012, has this to say:

“The qualification for appointment as a Judge of the Supreme Court is the holding of a Judge's office for at least five years in a High Court or in two or more High Courts in succession; or at least ten years' standing as an advocate of a High Court or two or more High Courts in succession; or distinction achieved as a jurist [Article 124(3)]. In computing the period during which a person has been an advocate, any period during which he has held judicial office not inferior to that of a District Judge after he became an advocate, is to be included [Article 124(3) Explanation II]. It is clear that the Explanation is not attracted if a person has been an advocate for ten years before accepting any judicial appointment, for that by itself is a sufficient qualification for appointment as a Judge of the Supreme Court.”

49. In our view, Explanation (aa) appended to Article 217(2) is so appended so as to compute the period during which a person has been an advocate, (sic by including) any period during which he has held the office of a member of a tribunal after he became an advocate. As stated by the learned author, quoted above, if a person has been an advocate for ten years before becoming a member of the tribunal, Explanation (aa) would not be attracted because being an advocate for ten years per se would constitute sufficient qualification for appointment as a Judge of the High Court."

(Emphasis supplied)

The Hon'ble Apex Court in the very same decision also dealt with the question as to whether the practice of an Advocate in the Mofussil Court would also include practice in the High Court as contemplated under Article 217(2)(b), by quoting Section 2(1)(a) of the Indian Bar Council Act, 1926 and the Advocates Act, 1961, as hereunder:

"Meaning of the expression an advocate of a High Court in Article 217(2)(b)

52. The said expression was placed in the Constitution at a time when the practice of advocates was governed by the Indian Bar Councils Act, 1926. Section 2(1)(a) of that Act defined an advocate to mean an advocate entered in the roll of advocates of a High Court under the provisions of this Act. Section 8 provided that:

“8. Enrolment of advocates.  (1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act:

It is this enrolment which gave a right to practise or entitlement to practise.

53. The scope of the said 1926 Act has been succinctly spelt out in the judgment of the Allahabad High Court in Durgeshwar Dayal Seth v. Bar Council, Allahabad, (AIR 1954 All 728) (vide paras 4 and 5), which judgment stands approved by this Court in O.N. Mohindroo v. Bar Council of Delhi, (AIR 1968 SC 888).

54. Paras 4 and 5 of the judgment in Durgeshwar Dayal Seth v. Bar Council, Allahabad, (AIR 1954 All 728) case read as under: (AIR pp. 729-30)

“4. The Bar Councils Act, 1926, was enacted by the Indian Legislature to provide for the constitution and incorporation of Bar Councils for certain courts. The Act extends to all the provinces of India. Under Section 1(2), it was made applicable to certain High Courts of Judicature including that at Allahabad and to such other High Courts within the meaning of clause (24) of Section 3 of the General Clauses Act, 1897, as the Provincial Government by notification in the Official Gazette, declare to be High Courts to which this Act applies. Sections 1, 2, 17, 18 and 19 of the Act came into force at once and by Section 1(3) the Provincial Government was empowered by notification to direct that the other provisions of the Act would come into force in respect of any High Court to which the Act applies on such date as it may by the notification appoint.

The main provisions of the Act are as follows: under Section 3 for every High Court a Bar Council would be constituted which was to be a body corporate, having perpetual succession. Section 8 lays down that

8. Enrolment of advocates.(1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of the High Court maintained under this Act:

andrequires the High Court to prepare and maintain a roll of advocates of the High Court. In the roll are to be entered the names of all persons who were, as advocates, etc., entitled as of right to practise in the High Court immediately before the date on which Section 8 comes into force, provided that they paid a fee, payable to the Bar Council, of Rs 10. Also the names of all other persons who have been admitted to be advocates of the High Court are to be entered in the roll on payment of such fee as may be prescribed. The High Court is required to send to the Bar Council a copy of the roll. This is also provided in Section 8.

The Bar Council is authorised to make rules to regulate the admission of persons to be advocates of the High Court, vide Section

9. The High Court is given the power by Section 10 to punish an advocate for misconduct; the enquiry into the allegation of misconduct is to be made by a committee of the Bar Council. Every person whose name is entered in the roll of advocates is entitled as of right to practise in the High Court of which he is an advocate, vide Section 14. Power is given by Section 15 to a Bar Council to make rules in respect of the rights and duties of the advocates of the High Court and their discipline and professional misconduct. When Sections 8 to 16 are applied to any High Court, the Legal Practitioners Act of 1879 stands amended to the extent and in the manner specified in the Schedule of the Act and if there is anything inconsistent with their provisions in the Letters Patent, they are deemed to have been repealed to that extent.

5. On the passing of the above Act, the Provincial Government issued a notification under Section 1(3) applying the rest of the sections of the Act to the High Courts then existing, the High Court of Judicature at Allahabad (which will be referred to as the old High Court) and the Chief Court of Avadh and Bar Councils were established for them. The applicant got himself admitted as an advocate on payment of the fee and his name was entered on the roll prepared by the old High Court of Allahabad. Under Section 14 he acquired the right to practise in the old High Court.

........

65. Apart from what is stated above, the judgment in O.N. Mohindroo v. Bar Council of Delhi, (AIR 1968 SC 888) also emphasises the fact that the 1961 Act inter alia provides that once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court. The 1961 Act creates one common Bar, all its members being of one class, namely, advocates.

66. Thus, it becomes clear from the legal history of the 1879 Act, the 1926 Act and the 1961 Act that they all deal with a person's right to practise or entitlement to practise. The 1961 Act only seeks to create a common Bar consisting of one class of members, namely, advocates. Therefore, in our view, the said expression an advocate of a High Court as understood, both, pre and post 1961, referred to person(s) right to practise. Therefore, actual practise cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as an advocate of the High Court. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on right to practise and not actual practice."

(emphasis supplied)

23.  This Court in V.G.Row V. A.Alagiriswamy reported in AIR 1967 Madras 347, while considering similar issue relating to elevation of the then Justice A.Alagiriswamy, in paragraph 7 held as follows :

"7. It is somewhat difficult to agree that this article of the Constitution interpreted as it stands compulsorily requires that the expression "has been an advocate of a High Court" should be taken to mean "has been practising before the High Court". If that was the underlying intention, it could have been so expressed. The difficulty insisted upon such a qualification is very apparent, for it is impossible to say whether an advocate who handless very few briefs in a year could be said to be actually practising. The makers of the Constitution could not have been unaware that a very many persons are enrolled as advocates of the High Court, but have little, or no work by way of pleading or acting. It is no doubt true that practising as an advocate is an essential requisite before those entrusted with the selection of a person to be a Judge would sponsor his case. But this is a matter which the Constitution makers apparently left to be examined by the persons charged with the duty of selection. The colourless expression "has been an advocate of a High Court" has to my mind been designedly put in only to ensure the necessary legal qualification and standing as an advocate, leaving out other matters which may call for a practical approach, such as the assessment of the ability of the advocate, the volume of his practice, his standing at the Bar, and the like. In the absence of anything which would compel the particular construction which learned counsel seeks to put upon it, I am to opinion that the article does not require that the person should have practised before a High Court as an advocate and that if he has confined his practice to the Courts other than the High Court, he lacks the qualification prescribed. Learned counsel sought to support his argument by reference to some debates in the Constituent Assembly where apparently an attempt was made to amend the article regarding the qualification of a person for appointment as a Judge of the Supreme Court, by including a pleader practising for a certain minimum period, in a District Court and that amendment was rejected. That has only been relied upon for the purpose of showing that when reference is made in the Constitution to an Advocate, it refers to a practising advocate and when it is made to an advocate who has been practising before a High Court. As I said, I am unable to agree with this interpretation. It was pointed out by the learned counsel again that there is no case of an advocate who has practised in the mofussil being appointed as a Judge of the High Court. That to my mind will not be of assistance in interpreting the words of a written constitution."

(emphasis supplied)

The said judgment of this Court has got the seal of approval of the Hon'ble Apex Court in Prof.Chandra Prakash Agarwal V. Chaturbuj Das Parikh and Others reported in 1970 (1) SCC 182. The operative portion of the Judgment reads as follows :

"9. ...... We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar and Others (AIR 1967 Madras 344) and V.G. Row v. A. Alagiriswamy (AIR 1967 Madras 347) the High Court of Madras also has interpreted Article 217(2)(b) in the same manner as we have done."

24.  From the above said judgments, it is amply clear that the second respondent is satisfying the conditions contained in Article 217(2)(b) of the Constitution of India for being appointed as Advocate General of Tamil Nadu under Article 165 of the Constitution of India.

25.  Now coming to the next issue regarding the bar under Article 319(d) of the Constitution of India for appointment of the Advocate General after holding the post of Member of TNPSC, it is relevant to refer the earlier decision of Rajasthan High Court in Dr.Chandra Bhan Singh V. State of Rajasthan reported in AIR 1983 Rajasthan 149. The question raised before the Rajasthan High Court was exactly same as that of the facts of this case, i.e., whether an Ex-Member of the State Public Service Commission is debarred under Article 317(d) of the Constitution of India from being appointed as Advocate General for the State. In the said decision, the Rajasthan High Court has held as hereunder :

"9. I have given my earnest consideration to the above contention and perused the authorities cited above. At the outset, I may observe that Shri Nathu Lal Jain, non-petitioner No. 3, admitted in his reply that he had held the office of a member of the Rajasthan Public Service Commission and after the termination of his office in the said Commission, he was appointed the Advocate General for the State of Rajasthan. Hence, the pertinent question that arises for determination is whether the express bar contained in Clause (d) of Article 319 of the Constitution can be made applicable to his new appointment as Advocate General for Rajasthan. Before dealing with this question, I may say that in order to apply this bar, the new appointment, after Shri Nathu Lal Jain ceased to be a member of the Rajasthan Public Service Commission, must be an employment under the Government of Rajasthan. According to the submission of the learned counsel for the petitioner, Shri Nathu Lal Jain holds his office of Advocate General during the pleasure of the Governor and the relationship between him and the Government is of master and servant, because the employer, i. e. Rajasthan Government has full control over him in the discharge of the functions and duties of his office. The contention on behalf of Mr. Nathu Lal Jain, on the other hand, is that even though he is appointed by the Governor as Advocate General, he holds his office under the Constitution without being subordinate to the Government of Rajasthan and the relationship between him and the Government is of client and the counsel. In my opinion, there exists no relationship of master and servant between the Advocate General and the Government, because, in the discharge of the functions and duties attached to his office, he is not subject to the control of the Government in a sufficient decree so as to make the Government his master. The legal concept of subordination or control includes the power of the master to direct the duties or functions to be done or performed by the subordinate or the servant, the manner in which they shall be done and performed, and, the means to be employed in doing or performing them, the time when and the place where they shall be done or performed. Having considered all these aspects of control, it can be said without difficulty that the position of Shri Nathu Lal Jain, Advocate General, in relation to the Government of Rajasthan is not that of servant and master but rather that of a counsel and client, because the Government cannot direct him to discharge his functions and duties In the manner in which it likes and, to say in other words, has no right to control the method of his doing work.

10. Clause (2) of Art 165 of the Constitution lays down the functions of the Advocate General as follows :--

(1) to give advice to the Government of the State upon such legal matters as may from time to time be referred to him by the Government;

(2) to perform such of the duties of legal character as may from time to time be assigned to him by the Governor.

(3) to discharge the functions conferred on him by or under the Constitution;

(4) to discharge the functions conferred on him by or under any other law for the time being in force.

11. Although under Clause (3) the office is held by the Advocate-General during the pleasure of the Governor and such remuneration is received by him, as may be determined by the Governor, yet, in my opinion, he cannot be treated as a Government servant on this score, because he holds the office to discharge the functions under the Constitution, as is evident from Clause (2) of Article 165 thereof without being subordinate to the Government of the State. For the discharge of functions and duties of his office he is not controlled by the Governor or the State Government, because while giving advice to the State Government upon any legal matter referred to him or while performing duties of a legal character assigned by the Governor or while discharging the functions conferred on him by or under the Constitution or any other law for the time being in force, he is free to exercise his discretion, though according to law, and according to his best ability, in the manner which he considers best. The Governor or the State Government is not empowered to ask him to discharge his functions or to perform his duties in the manner in which they like. Similarly, he is free to give such legal advice or assistance to private parties in all such cases in which he is not likely to be called upon to give advice to the Government or to conduct or argue them in the court on behalf of the State. In support of the view I have taken above, I may refer to an authority of the Supreme Court T. C. Hingorani v. G. P. Misra (Civil Appeal No. 564 of 1964 decided on 24th Sept., 1965) (reported in 1967 All WR (SC) 662), wherein the following observations were made by their Lordships:--

"Then as to his status as an Advocate simpliciter, he was entitled at the relevant time to practise as a matter of right as prescribed by S. 14 of the Indian Bar Councils Act, 1926 (38 of 1926). It is not disputed that the Advocate-General is not a Government servant though he receives remuneration on his appointment as Advocate-General under Article 165(3) and so there can be no doubt that subject to the other terms and conditions of his appointment as Advocate-General, he would be entitled "to exercise his right as an Advocate and appear for private parties. Thus, whether the status of Mr. Misra is considered as an Advocate-General or as an Advocate. Prima facie, it is difficult to understand how he can be prohibited from appearing in any legal proceeding like the one with which the Allahabad High Court was dealing in the present case."

Consequently. I have no hesitation in holding that Mr. Nathu Lal Jain, who has held the office as a member of the Rajasthan Public Service Commission, was not debarred from holding the office of the Advocate-General after termination of his office in the Rajasthan Public Service Commission."

(emphasis supplied)

In the same decision, the Rajasthan High Court has also dealt with another issue involved in this case, namely, whether the appointment of Advocate General under Article 165 is illegal on the ground that the appointee has crossed 62 years of age. In respect of the said issue, the Rajasthan High Court has held as hereunder :

"12. Another contention put forward by Mr. Jagdeep Dhankar, learned counsel for the petitioner, before me is that the appointment of Mr. Nathu Lal Jain to the office of the Advocate-General is bad or illegal under Article 165 of the Constitution of India, as he was not qualified to be appointed a Judge of the High Court after attaining the age of 62 years. The above contention is devoid of force, because all that the first clause of Article 165 lays down is that a person, who is qualified for appointment as a Judge of a High Court, can be appointed Advocate-General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed under the second clause of Article 217 of the Constitution. The provision about duration of tenure of the appointment of a Judge of a High Court does not find place in Clause (2) of Article 217 and so the attainment of the age of 62 years cannot be regarded as a disqualification for appointment of a Judge of a High Court under Clause (2) of Article 217. In my opinion, the provision contained in Clause (1) of Article 217 that a Judge of a High Court shall hold office until he attains the age 62 years is not a provision prescribing a qualification for appointment of a Judge, but it appears to be a specific provision about the tenure or duration of a High Court Judge, Apart from this, all the constitutionals provisions, which relate to a Judge of a High Court, cannot be applied to the Advocate-General, as for example, the provisions about remuneration, and duration of appointment are quite different for the two offices. The Advocate-General receives such remuneration, as may be determined while a Judge of a High Court is governed in this matter by Article 221 of the Constitution. Likewise the Advocate-General shall hold office during the pleasure of the Governor while the duration of the appointment of a Judge of a High Court is fixed by reference to a particular age, i. e. age of 62 years. Consequently, there is no warrant for holding that the appointment of Shri Nathu Lal Jain to the office of the Advocate-General was or is illegal because he had crossed 62 years on the date he was appointed as Advocate-General. It is not the case of the petitioner that Mr. Nathu Lal Jain does not possess the qualifications prescribed under Article 217 of the Constitution of India for appointment of a Judge of a High Court. In this view of the matter, this contention of Mr. Jagdeep Dhankar has no substance."

The said decision of the Rajasthan High Court has also received the seal of approval from the Hon'ble Apex Court in the decision rendered in State of Uttaranchal V. Balwant Singh Chaufal reported in (2010) 3 SCC 402 (Paragraph 13). The Hon'ble Apex Court in the said decision, by citing its earlier decisions as well as the decisions rendered by various High Courts, has elaborately dealt with the issue involved in the instant writ petition as hereunder:

"9. Shri Dinesh Dwivedi, the learned Senior Counsel appearing for the State of Uttarakhand submitted that, over half a century ago, in G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330, this controversy has been settled by a Division Bench of the Nagpur High Court and the said judgment was approved by a Constitution Bench of this Court in Atlas Cycle Industries Ltd. v. Workmen, AIR 1962 SC 1100.

10. In G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330, it was observed as follows: (AIR pp. 335-36, paras 25-31)

“25. It is obvious that all the provisions relating to a Judge of a High Court cannot be made applicable to the Advocate General. The provisions about remuneration are different for the two offices. A Judge of the High Court is governed by Article 221. The Advocate General is governed by clause (3) of Article 165 and receives such remuneration as the Governor may determine.

26. What the first clause of Article 165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Article 217. It is true that the first clause of Article 217 says that a Judge of a High Court shall hold office until he attains the age of 60 years. The real question then is whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. As the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court.

27. The provision about duration in the first clause of Article 217 cannot be made applicable to the Advocate General because the Constitution contains a specific provision about the duration of the appointment of the Advocate General in the third clause of Article 165 which says that the Advocate General shall hold office during the pleasure of the Governor. As this provision does not limit the duration of the appointment by reference to any particular age, as in the case of a Judge, it is not permissible to import into it the words until he attains the age of sixty years. The specific provision in the Constitution must therefore be given effect to without any limitation. If a person is appointed Advocate General, say at the age of fifty-five, there is no warrant for holding that he must cease to hold his office on his attaining sixty years because it is so stated about a Judge of a High Court in the first clause of Article 217. If that be the true position, as we hold it is, then the appointment is not bad because the person is past sixty years, so long as he has the qualifications prescribed in the second clause of Article 217. It was not suggested that the non-applicant does not possess the qualifications prescribed in that clause.

28. The provision that every Judge of a High Court shall hold office until he attains the age of sixty years has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a disability in that a Judge cannot hold his office as of right after he attains the age of sixty years.

29. We say as of right because under Article 224 a person who has retired as a Judge of a High Court may be requested to sit and act as a Judge of a High Court. The attainment of the age of sixty by a person cannot therefore be regarded as a disqualification for performing the functions of a Judge. But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224.

The distinction between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Articles 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article 217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that article expressly provides that a Judge shall hold office until he attains the age of sixty years.

30. If the provision in the first clause of Article 217 viewed as a guarantee of tenure of office until the age of sixty is not available to the Advocate General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate General after the age of sixty years. We have no doubt on the point. Even if the question be considered as not free from doubt, as the applicant desires to construe the first clause of Article 217 as a disabling provision against the non-applicant, we cannot forget that provisions entailing disabilities have to be construed strictly: Parameswaran Pillai Bhaskaran Pillai v. State, AIR 1951 TC 45. The canon of construction approved by Their Lordships of the Privy Council is that if there be any ambiguity as to the meaning of a disabling provision, the construction which is in favour of the freedom of the individual should be given effect to: J.E. David v. S.P.A. De Silva, 1934 AC 106 (CA), (AC at p. 114).

31. There is no force in the contention that the non-applicant could not have been appointed Advocate General because he had retired as a Judge of the High Court. The learned counsel referred us to clause (4)(a) of Article 22 of the Constitution and submitted that the Constitution makes a distinction between a person who has been a Judge and one who is qualified to be appointed as a Judge of a High Court. The provision in our view only makes an exhaustive enumeration of the classes of persons who can constitute an Advisory Board. Such persons must either be or must have been or must be qualified to be appointed as Judges of a High Court. The provision has therefore no bearing on the question whether the first clause of Article 165 has to be read with the first clause of Article 217, which question we have already answered in the negative. The case of the non-applicant is unique. Article 220 is not applicable to him because he did not hold office as a Judge of the High Court after the commencement of the Constitution. So the bar contained in that article also does not come in his way.

11. Despite the fact that the controversy has been fully settled by a judgment of this Court, it has been raised from time to time in a number of writ petitions before the various High Courts. We would reproduce some of the judgments to demonstrate that after the controversy has been finally settled by this Court, the filing of indiscriminate petitions for the same relief creates unnecessary strain on the judicial system and consequently leads to inordinate delay in disposal of genuine and bona fide cases. The following cases would demonstrate that, in how many High Courts, the similar controversy has been raised after the matter was finally settled by this Court.

12. In Ghanshyam Chandra Mathur v. State of Rajasthan, 1979 WLN 773 (Raj), the appointment of the Advocate General was once again challenged. The Court held that:

“no age of superannuation has been mentioned in Article 165 of the Constitution of India. This clearly means that the age of superannuation which applies to a High Court Judge, does not apply to the office of the Advocate General.”

13. In Chandra Bhan Singh (Dr.) v. State of Rajasthan, AIR 1983 Raj 149 the question regarding the validity of the appointment of the Advocate General was challenged. The Court in that case had held that the age of superannuation of a High Court Judge did not apply to the post of the Advocate General. The Court noted that all provisions in the Constitution for the High Court Judges, such as remuneration and tenure of office do not apply to the post of the Advocate General.

14. In Manendra Nath Rai v. Virendra Bhatia, AIR 2004 All 133, the appointment of the Advocate General was yet again challenged. The Court held as under: (AIR p. 135, para 11)

“11. The argument that the provision of sub-clause (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a High Court. The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate General. The appointment of Advocate General is not governed by the aforesaid article which falls in Part VI Chapter V of the Constitution whereas Article 165, which deals with the appointment of Advocate General for the State falls in Chapter II of Part VI. The scheme of the Constitution for the appointment of Advocate General as well as for appointment of a Judge of the High Court is totally different.

15. In a Division Bench judgment dated 4-2-2005 of the Allahabad High Court in Prem Chandra Sharma v. Milon Banerji, (2005) 3 ESC 2001 in Writ Petition No. 716(M/B) of 2005, the appointment of the Attorney General for India was challenged and a prayer was made to issue a writ in the nature of quo warranto, because according to the petitioner, the respondent Milon Banerji had already attained the age of 65 years and he could not be appointed as the Attorney General for India. In that case, the Division Bench relied upon the judgment of the Division Bench of the Nagpur High Court in G.D. Karkare V. T.L.Shevde, AIR 1952 Nag 330. The Court held as under:

“Having examined various provisions of the Constitution, it is quite clear that the Constitution of India does not provide the retirement age of various constitutional appointees. No outer age limit has been provided for the appointment of the Attorney General, Solicitor General and Advocate General in the State. In the democratic system prevailing in our country the Attorney General is appointed on the recommendation of the Prime Minister by the President of India and traditionally, he resigns along with the Prime Minister. Learned counsel for the petitioner could not show any law relating to the age of retirement of Attorney General or embargo provided in Constitution on appointment of a person as Attorney General, who has already attained the age of 65 years. We are of the considered opinion that the letter and spirit of the Constitution as far as appointment of the Attorney General is concerned, looking to significance, responsibility and high status of the post, it lays down certain requirements for a Member of Bar to be appointed as Attorney General of India. It is in this backdrop that the framers of the Constitution thought it necessary to prescribe minimum requisite qualification by laying that a person who is qualified to be appointed as Judge of the Hon'ble Court can be appointed as Attorney General for India. This situation, however, cannot lead us to the conclusion by any stretch of imagination that the Attorney General cannot hold his office after the age of 65 years. As already indicated hereinabove there are various constitutional functionaries where no outer age limit is provided to hold the office.”

16. In view of the clear enunciation of law in the aforesaid judgments, the controversy has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years. Similarly, the Attorney General for India can be appointed after he/she attains the age of 65 years. In a number of other cases regarding the appointment of other authorities, the Courts have consistently taken a similar view. This Court in Binay Kant Mani Tripathi v. Union of India, (1993) 4 SCC 49, has reaffirmed this position. The Court pointed out that the decision of appointing D.K. Aggarwal to the position of the Vice-Chairman of the Central Administrative Tribunal could not be held to be illegal or wrong on the ground that he was more than sixty-two years old.

17. In Baishnab Patnaik v. State, AIR 1952 Ori 60, the appointment of a person to the Advisory Board under the Preventive Detention Act was challenged on the grounds that he was older than 60 years (the age of superannuation for High Court Judges at that time). The Court pointed out: (AIR p. 61, para 6)

“6. If the makers of the Constitution thought that the age limit was one of the qualifications for appointment as a Judge of a High Court they would not have specified it in clause (1) of Article 217 but would have included it in clause (2) of the said article.”

18. ....

19. The aforementioned cases clearly give us the picture how the judicial process has been abused from time to time and after the controversy was finally settled by a Constitution Bench of this Court, repeatedly the petitions were filed in the various courts.

20. In the instant case, one of the petitioners before the High Court is a practising lawyer of the Court. He has invoked the extraordinary jurisdiction of the High Court in this matter. It was expected from an Hon'ble member of the noble profession not to invoke the jurisdiction of the Court in a matter where the controversy itself is no longer res integra. Similarly, it is the bounden duty of the court to ensure that the controversy once settled by an authoritative judgment should not be reopened unless there are extraordinary reasons for doing so."

(emphasis supplied)

In paragraph 21, the Hon'ble Apex Court has expressed its displeasure towards the High Court in entertaining the petition despite the fact that the controversy involved in that matter was no longer res integra. Further in paragraphs 22 the Hon'ble Apex Court, has held as follows :

"22. The State of Uttarakhand was a part of the State of U.P. a few years ago. In the State of U.P., a large number of Advocates General appointed were beyond 62 years of age at the time of their appointment. The petitioner, a local practising lawyer, ought to have bestowed some care before filing this writ petition in public interest under Article 226 of the Constitution. The controversy raised by the petitioner in this case was decided 58 years ago in G.D. Karkare V. T.L.Shevde, AIR 1952 Nag 330, which was approved by the Constitution Bench of the Supreme Court way back in 1962. Unfortunately, the same controversy has been repeatedly raised from time to time in various High Courts. When the controversy is no longer res integra and the same controversy is raised repeatedly, then it not only wastes the precious time of the Court and prevents the Court from deciding other deserving cases, but also has the immense potentiality of demeaning a very important constitutional office and person who has been appointed to that office."

(emphasis supplied)

In paragraph 23, it was held that the said case was a clear case of abuse of process of court in the name of Public Interest Litigation and the Hon'ble Apex Court issued guidelines for entertaining PIL and observed in paragraphs 173 and 174 as hereunder:

"173. When we revert to the facts of the present case then the conclusion is obvious that this case is a classic case of the abuse of the process of the court. In the present case a practising lawyer has deliberately abused the process of the court. In that process, he has made a serious attempt to demean an important constitutional office. The petitioner ought to have known that the controversy which he has been raising in the petition stands concluded half a century ago by a Division Bench judgment of the Nagpur High Court in G.D.Karkare V. T.L.Shevde, AIR 1952 Nag 330, and the said case was approved by a Constitution Bench of this Court. The controversy involved in this case is no longer res integra. It is unfortunate that even after such a clear enunciation of the legal position, a large number of similar petitions have been filed from time to time in various High Courts. The petitioner ought to have refrained from filing such a frivolous petition.

174. A degree of precision and purity in presentation is a sine qua non for a petition filed by a member of the Bar under the label of public interest litigation. It is expected from a member of the Bar to at least carry out the basic research whether the point raised by him is res integra or not. The lawyer who files such a petition cannot plead ignorance."

(emphasis supplied)

Ultimately, the Hon'ble Apex Court imposed heavy cost of Rs.1,00,000/- to be paid in the name of the Registrar General of the High Court of Uttarakhand and further requested the Hon'ble Chief Justice of the said High Court to create a fund in the name of Uttarakhand High Court Lawyers' Welfare Fund, if not already in existence, and directed to utilize the said fund for providing necessary help to deserving young Lawyers' in consultation with the President of the Bar.

26.  In an earlier decision the Constitutional Bench of the Supreme Court in Hargovind Pant V. Dr.Raghukul Tilak reported in 1979 (3) SCC 458 considered the issue as to whether the Member of the Public Service Commission after demitting the office can be appointed as Governor of a State. The Hon'ble Apex Court in the decisions has also held as hereunder :

"3. We are concerned in this special leave petition only with clause (d) of Article 319 since Respondent 1 was a member of the Rajasthan Public Service Commission and it is on account of that fact that it is claimed that he was ineligible to be appointed Governor of Rajasthan. Clause (d) of Article 319 provides:

“On ceasing to hold office  a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State.

It is, therefore, obvious that Respondent 1 could be appointed Chairman or any other member of the Union Public Service Commission or Chairman of the Rajasthan or any other State Public Service Commission, but he was ineligible for any other employment either under the Government of India or under the Government of a State. Now, it was not the case of the petitioner that the office of Governor was an employment under the Government of a State and the only question which, therefore, requires to be considered is whether the office of Governor can be said to be an employment under the Government of India. If it is, then undoubtedly Respondent 1 could not be appointed Governor of Rajasthan and his appointment would be invalid. But we are of the view that howsoever wide and expansive a meaning we may give to the words employment  under the Government of India, the office of Governor cannot come within it.

4. The first question that arises on the applicability of the words employment  under the Government of India is whether the office of Governor is an employment within the meaning of that expression in clause (d) of Article 319. What is the sense in which that word has been used in this article? Semantically, the word employment is not a word with a single fixed meaning but it has many connotations. On the one side it may bear the narrow meaning of relationship of employer and employee and on the other, it may mean in its widest connotation any engagement or any work in which one is engaged. If the former be the sense in which the word employment is used in clause (d) of Article 319, the office of Governor would certainly not be an employment, because the Governor of a State is not an employee or servant of anyone. He occupies a high constitutional office with important constitutional functions and duties. The executive power of the State is vested in him and every executive action of the Government is required to be expressed to be taken in his name. He constitutes an integral part of the legislature of the State though not in the fullest sense, and is also vested with the legislative power to promulgate ordinances while the Houses of the legislature are not in session. He also exercises the sovereign power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. He is vested with the power to summon each House of the legislature or to prorogue either House or to dissolve the Legislative Assembly and this power may be exercised by him from time to time. He is also entitled to address either House of legislature or both Houses assembled together and he may send messages to the House or Houses of the legislature with respect to a bill then pending in the legislature or otherwise. No bill passed by the Houses of the legislature can become law unless it is assented to by him and before assenting to the bill he may return the bill, provided it is not a money bill, to the Houses of the legislature for reconsideration. He has also the power to reserve for consideration of the President any bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution designed to fill. There is also one highly significant role which he has to play under the Constitution and that is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is the Governor's report which generally forms the basis for the President taking action under Article 356 of the Constitution. It will be seen from this enumeration of the Constitutional powers and functions of the Governor that he is not an employee or servant in any sense of the term. It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does not make the Governor an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President. It is a constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor. The Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties and he cannot, therefore, even by stretching the language to a breaking point, be regarded as an employee or servant of the Government of India. If, therefore, the word employment were construed to mean relationship of employer and employee, the office of Governor would certainly not be an employment within the meaning of clause (d) of Article 319.

5. But if we accept the wider meaning of the word employment as connoting any engagement or any work in which one is engaged, as in the expression self-employment, the office of Governor would clearly be an employment within the meaning of clause (d) of Article 319. That, however, would not be enough to attract the applicability of this provision. There is a further requirement which is necessary and that is that the employment must be under the Government of India. Now, what is the meaning of this expression under the Government of India? Fortunately, there are two decisions of this Court which throw some light on this question. The first is the decision in Pradyat Kumar Bose v. Hon'ble The Chief Justice of Calcutta High Court where the question was as to whether the officers and members of the staff of the High Court could be said to be persons serving under the Government of India or the Government of a State in a civil capacity so as to be within the scope of Article 320(3)(c) which requires consultation with the appropriate Public Service Commission in disciplinary matters. This Court, speaking through Jagannathadas, J., pointed out:

“The phrase a person serving under the Government of India or the Government of a State seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Governments functioning in the name of the President or of the Governor or of a Rajpramukh. The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice .”

The question which arose in the other decision in Baldev Raj Guliani v. Punjab and Haryana High Court was a similar one and it related to the applicability of Article 320(3)(c) to judicial officers in the State. Here in this case also the court took the same view and, after referring to the earlier decision in Pradyat Kumar Bose case with approval, held that just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the State Government, because they are entirely under the jurisdiction of the High Court for the purpose of control and discipline. It will, therefore, be seen that the employment can be said to be under the Government of India if the holder or incumbent of the employment is under the control of the Government of India vis-a-vis such employment. Now, if one applies this test to the office of Governor, it is impossible to hold that the Governor is under the control of the Government of India. His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State. There can, therefore, be no doubt that the office of Governor is not an employment under the Government of India and it does not come within the prohibition of clause (d) of Article 319.

6. We may point out that the Governor of a State is not the only constitutional functionary whose employment is not under the Government. There are under the Constitution many other high functionaries, such as Judges of the Supreme Court and the High Courts, who do not hold any employment under the Government of India, although they exercise State power. This Court, while examining the constitutional position of a High Court Judge, pointed out in the Union of India v. S.H. Sheth that a High Court Judge is not a Government servant: there is no relationship of employee and employer subsisting between him and the Government. He is a holder of a constitutional office which has important constitutional functions and duties. One of us (Bhagwati, J.) pointed out in that case at p. 463 of the Report (SCC p. 236, para 49) that a High Court Judge

“is as much part of the State as the executive Government. The State has in fact three organs, one exercising executive power, another exercising legislative power and the third exercising judicial power. Each is independent and supreme within its allotted sphere and it is not possible to say that one is superior to the other. The High Court, constituted of the Chief Justice and other judges, exercising the judicial power of the State and is coordinate in position and status with the Governor aided and advised by the Council of Ministers, who exercises the executive power and the Legislative Assembly together with the Legislative Council, if any, which exercises the legislative power of the State. Plainly and unquestionably, therefore, a High Court Judge is not subordinate either to the executive or the legislature. It would, indeed, be a constitutional heresy to so regard him. He has a constitutional function to discharge, which includes adjudication of the question whether the executive or the legislature has over-stepped the limits of its power under the Constitution. No doubt Article 217 clause (1) provides for appointment of a person to the office of a High Court Judge by the President, which means in effect and substance the Central Government, but that is only laying down a mode of appointment and it does not make the Central Government an employer of a High Court Judge. In fact a High Court Judge has no employer: he occupies a high constitutional office which is coordinate with the executive and the legislature.

These observations apply equally to the office of a Judge of the Supreme Court. We are mentioning this merely to bring home, through comparable constitutional functionaries, the validity of the proposition that holders of high constitutional offices exercising State power and drawing salaries from State coffers may nevertheless be not employees or servants or holders of employment under the Government.

7. We are, therefore, of the view that the office of Governor of a State is not an employment under the Government of India and it does not, therefore, come within the prohibition of clause (d) of Article 319 and on this view, the appointment of Respondent 1 as the Governor of Rajasthan cannot be held to be invalid."

(emphasis supplied)

The only difference in the facts of the judgment of the Supreme Court and of this case is, in the case before the Supreme Court the challenge made was to the appointment of a Governor after the person held the post of Member of Public Service Commission, whereas, in this case, the second respondent is appointed as Advocate General after he held the post of Member of TNPSC. The Hon'ble Apex Court in the said decision confirmed the views of the Full Bench of the Rajasthan High Court in Har Govind Pant V. Chancellor, University of Rajasthan and Others reported in AIR 1978 Rajasthan 72.

27.  In yet another decision in Joginder Singh Wasu V. State of Punjab reported in 1994 (1) SCC 184, the Hon'ble Apex Court explained the status conferred on Advocate General and relationship of the Advocate General and the Government as hereunder :

"18. Under Article 177 he is conferred the right to audience before the Legislature of a State both in the Assembly and the Council. In fact, he is treated on a par with the Minister. The said article reads as under:

“177. Every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise to take part in the proceedings of the Legislative Assembly of the State or, in the case of a State having a Legislative Council, both Houses, and to speak in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member, but shall not, by virtue of this article, be entitled to vote.”

19. Having regard to his high position when any statement or a concession is made by him the courts have always accepted his statement and acted on that. In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala [(1991) 4 SCC 195] this Court observed:

“Any concession made by the government pleader in the trial court cannot bind the Government as it is obviously always unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate-General has made a statement across the bar since the Advocate-General makes the statement with all responsibility.”

20. The relationship between the Advocate-General and the State Government is essentially that of an Advocate and a client in relation to his appearance in court and arguing the case before the court on behalf of the State. ....... The position of the State vis-a-vis the Advocate-General may be described in the words of William Shakespeare:

“Whose worth is unknown, Although his height be taken.”

28.  A Division Bench of the Delhi High Court in a Writ Petition in W.P.(C)No.2231/2011 (D.K.Sharma V. Union of India) by order dated 08.04.2011, following the judgment of the Hon'ble Apex Court in Mahesh Chandra Gupta V. Union of India reported in 2009 (8) SCC 273, has held as hereunder :

"5. The expression "has for at least ten years been an advocate" does not mean and convey that the person to be appointed should be an Advocate in praesenti i.e. on the date when his name is recommended for appointment by the High Court collegium or at the time of appointment. It is not possible to accept the contention of the petitioner that the past experience of a person as an Advocate gets obliterated or washed away when an Advocate is appointed as a member of a Tribunal. The aforesaid negative covenant or condition cannot be either expressly or impliedly read into Article 217(2)(b) of the Constitution. The words "has" and "been" used in Article 217(2)(b) do not connote that a person should be a practicing Advocate on the date when his name is recommended for appointment as a High Court Judge.

6. The view, we have taken is in consonance and as per the ratio in Mahesh Chander Gupta Vs. Union of India (2009) 8 SCC 273, wherein it has been held:-

"48. Commenting on Explanation II, H.M.Seervai in Constitutional Law of India, 1st Edn., p. 1012, has this to say:

"The qualification for appointment as a Judge of the Supreme Court is the holding of a Judge's office for at least five years in a High Court or in two or more High Courts in succession; or at least ten years' standing as an advocate of a High Court or two or more High Courts in succession; or distinction achieved as a jurist [Article 124(3)]. In computing the period during which a person has been an advocate, any period during which he has held judicial office not inferior to that of a District Judge after he became an advocate, is to be included [Article 124(3) Explanation II]. It is clear that the Explanation is not attracted if a person has been an advocate for ten years before accepting any judicial appointment, for that by itself is a sufficient qualification for appointment as a Judge of the Supreme Court."

49. In our view, Explanation (aa) appended to Article 217(2) is so appended so as to compute the period during which a person has been an advocate, (sic by including) any period during which he has held the office of a member of a tribunal after he became an advocate. As stated by the learned author, quoted above, if a person has been an advocate for ten years before becoming a member of the tribunal, Explanation (aa) would not be attracted because being an advocate for ten years per se would constitute sufficient qualification for appointment as a Judge of the High Court."

(emphasis supplied)

7. The aforesaid observations by the Supreme Court adumbrate that the explanation (aa) appended to Article 217(2) need not be made applicable or would not be attracted, if the person otherwise has been an Advocate for 10 years. This by itself would constitute sufficient qualification and make a person eligible for appointment as a Judge of the High Court under Article 217(2)(b).

8. The Supreme Court in the said case had also examined the question whether requirement of Article 217(2)(b) can be equated with "actual practice" or only requires "entitlement to practice".

Referring to an earlier decision in Lily Isabel Thomas, Re AIR 1964 SC 855, it has been observed in Mahesh Chander Gupta (supra) as follows:-

"51. In Lily Isabel Thomas, Re this Court equated "right to practise" with "entitlement to practise" (see para 11). In our view, Article 217(2)(b), therefore, prescribes a qualification for being appointed a Judge of the High Court.

The concept of "actual practise" will fall under Article 217(1) whereas the concept of right to practise or entitlement to practise will fall under Article 217(2)(b). The former will come in the category of "suitability", the latter will come in the category of "eligibility"."

9. The Supreme Court elaborately dealt with the aforesaid contention and has held that "entitlement to practice" is sufficient to meet the requirements of Article 217(2)(b). The Supreme Court has made specific reference to the difference in language of clauses 1 and 2 to Article 217. It has been held that Article 217(1) has a clause relating to "suitability" or "merits", whereas Article 217(2) has a clause relating to "eligibility requirements or qualification" and does not deal with "suitability" or "merits". The provisions of the Advocates Act, 1961, etc. entitle a person to practice in any High Court and for this purpose mere enrollment is sufficient."

......

"22. In view of the aforesaid findings, we are not required to examine other contentions raised by the petitioner including challenge to the explanations (a) and (aa) to Article 217(2) inserted by 42nd Amendment Act, 1976 and 44th Amendment Act, 1978. The question of constitutional vires is left open and need not be decided in the present case as the respondent No.3 is otherwise eligible under Article 217(2)(b) without applying and taking benefit of Explanation (aa) thereto. Explanation (a) is not applicable."

(emphasis supplied)

The Hon'ble Apex Court dismissed the SLP filed against the said judgment in Special Leave to Appeal (Civil) No.13687 of 2011 by order dated 08.04.2011.

29.  The learned petitioner cited one of the supreme court decisions in Union of India V. U.D.Dwivedi reported in AIR 1997 SC 1313, wherein, a retired Member of UPSC was appointed as the Chairman of Assessment Board at Recruitment and Assessment Centre. The said appointment was held illegal stating that the appointment was treated as employment by contract. Therefore, the facts in the said case have no application to the instant case.

30.  The decision relied on by the learned petitioner in Kanta Kathuria V. Manak Chand reported in AIR 1970 SC 694 is in respect of an issue as to whether a Government Pleader elected as Member of Legislative Assembly is liable for disqualification. Hence, the said decision is not relevant to the facts and issues involved in this case. The other decisions relied on by the learned petitioner are in respect of employment or a post, which is treated as 'Office-of-profit'.

31.  In the light of the direct decisions on the questions raised in this writ petition, which we have referred to above, it is suffice for us to point out the ratio decidendi laid down in the above cited catena of decisions of the Hon'ble Apex Court as well as various High Courts.

32.  At this juncture, we are constrained to put on record that the learned petitioner argued to the effect that the issues raised by him were not considered by the decisions of the Hon'ble Apex Court. After Mr.R.Muthukumarasamy, learned Senior Counsel for the second respondent, brought to the notice of this Court the ratio decidendi laid down by the Hon'ble Apex Court and various High Courts including this Court, relating to the settled position of very same issues raised in this petition by the learned petitioner, it is contended by the learned petitioner that the said decisions cannot be construed to be ratio decidendi and the same can only be considered as obiter dictum. We are unable to countenance the said contention for the simple reason that the principles laid down by various High Courts and the Hon'ble Apex Court in the decisions cited supra cannot be stated to be mere obiter dictum, and as a matter of fact, the said principles are directly and substantially decided on the issues raised in this writ petition filed by the learned petitioner and the above cited decisions are binding on us.

33.  In fine, we are of the view that the second respondent has fully satisfied the eligibility conditions as contemplated under Article 217(2)(b) of the Constitution of India for being appointed as Advocate General of the State of Tamil Nadu as per Article 165 of the Constitution of India, and he is not barred for being appointed as Advocate General of Tamil Nadu under sub-clause (d) of Article 319 of the Constitution of India. There is no merit in the writ petition as well as impleading petition. Consequently, the writ petition is dismissed. Connected miscellaneous petitions are also dismissed. However, there will be no order as to costs.