MADHUSOODANAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a Public Interest Litigation filed by an advocate of this Court challenging the appointment of the third respondent as Advocate General of the State on the ground that he is not qualified to hold the said post. We have heard the petitioner in person, Government Pleader for the State, Assistant Solicitor General for Union of India, counsel appearing for the respondent and additional 5th respondent, an Advocate of this Court, who got impleaded and opposed the petition.

(2.) There is no dispute on facts inasmuch as the third respondent was appointed as an additional Judge of this Court on 11-4-1996. However, in exercise of the powers conferred under Article 222 of the Constitution of India, the President of India transferred the third respondent as an Additional Judge of the Gujarat High Court and directed him to assume charge in that High Court on or before 22-7-1996. The third respondent failed to join the High Court of Gujarat as an Additional Judge based on the above referred transfer orders and consequently, the President of India, in consultation with the Chief Justice of India, declared that the third respondent has ceased to be a High Court Judge with effect from 22-7-1996. The main contention raised by the petitioner is that this development i.e. the appointment of the third respondent as Additional Judge of this Court and his failure to go and join the Gujarat High Court on transfer that lead to his ceasing to be a High Court Judge disqualifies him from being appointed as Advocate General of the State in terms of Article 165(1) of the Constitution of India. All the respondents including the additional respondent, on the other hand, contended that the qualification for appointment as Advocate General are contained only in Article 217(2) of the Constitution, which is citizenship in India and ten years of practice as an Advocate of the High Court, which, admittedly the third respondent has. So much so, according to them, the writ petition is misconceived. The grounds raised challenging the appointment of the Advocate General is rather unique in nature and probably this is the first case of this nature reaching the High Court. The scope of the relevant provisions of the Constitution to be considered are the following:

(3.) The fact that the third respondent was eligible to be appointed as a Judge of the High Court in 1996 stands proved by the very fact that he was in fact, appointed as an additional Judge of this Court and he assumed charge on 24-4-1996. Therefore, the only question is whether the third respondent's transfer to Gujarat High Court as an additional Judge and his failure to go and join there leading to his being ceased to be a Judge of the High Court makes him disqualified from being appointed as Advocate General. While the contention of the petitioner is that a person to be appointed as Advocate General should have the same qualification for appointment as a Judge of the High Court and since there is no provision for reappointment of a person as Judge again, who after his appointment as a High Court Judge, refused to go and join in the High Court to which he was transferred and consequently ceased to be Judge, the contention of the respondents is that third respondent has the qualifications prescribed under Article 217(2) of the Constitution for being appointed as a High Court Judge, which in turn, applies for appointment of Advocate General, as well. The decisions cited by both sides include the recent decision of the Apex Court in State of Uttaranchal v. Balwant Singh Chaufal & others, 2010 3 SCC 402, the judgment of the Allahabad High Court in Manendra Nath Rai and another v. Virendra Bhatia and others, 2004 AIR(All) 133 and a judgment of this Court in K.K. Bhaskaran v. State of Kerala,1983 KerLT 894. The conclusions drawn by the courts in the above decisions are to the effect that an Advocate General can be appointed beyond the retirement age of High Court Judge and even a retired Judge can be appointed as an Advocate General for the State. Petitioner does not canvass the position that the third respondent is disqualified to be appointed as the Advocate General for the State on account of his age which is above the retirement age of High Court Judges. So much so, we need not consider this question. The only question remains to be decided is whether the third respondent's failure to abide by the transfer order issued to him directing him to resume charge as Additional Judge of the Gujarat High Court leading to his ceasing to be a Judge will disqualify him from being appointed as Advocate General. In support of this contention, petitioner has relied on Article 217(1)(c) which clearly states that a Judge, on transfer from one High Court to another, shall vacate the office of the Judge of the High Court from which he is transferred. In other words, according to the petitioner, the third respondent, on being transferred, has ceased to be a Judge of this Court and so much so, he is disqualified to be appointed again as Judge of the High Court and consequently he is disqualified to be appointed as Advocate General. In the first place, we have to hold that a transferred Judge ceases to be a Judge of the High Court wherefrom he is transferred only when he assumes charge as Judge of the other High Court to which he is transferred. The position clarified in Clause (c) of Article 271(1) is only to the effect that no one could be a Judge of more than one High Court simultaneously. In this case what has happened is by virtue of the failure of the third respondent to assume charge as an Additional Judge of the Gujarat High Court, he has ceased to be a Judge of the Kerala High Court and not a Judge of the Gujarat High Court where he never became a Judge. There is no' dispute that Advocate General is a person of choice of the Council of Ministers and appointment is made by the Governor under Article 165(1) of the Constitution in terms of the advice received from the Council of Ministers as contained in Article 163(1) of the Constitution. Though the authority to appoint Advocate General is on the Governor, there can be no dispute that he goes by the advice of the Council of Ministers and so much so, the question whether a person is qualified to be appointed as Advocate General is to be decided by the Council of Ministers. Advocate General certainly is a person of the choice of the Council of Ministers. However, Advocate General has to be chosen with specific reference to Article 217(2) of the Constitution, which prescribes the minimum qualification for appointment of a person as a Judge of the High Court. In this case, the third respondent has both the qualifications provided under Article 217(2) i.e., being a citizen of India and an advocate who has completed ten years of practice in a High Court. However, the contention of the respondents that the qualifications required for appointment as Advocate General are only those contained in Article 217(1) of the Constitution is not correct because the said provision prescribes only the minimum qualification for appointment. Article 217(1) says that a person to be appointed as Advocate General has to be qualified to be appointed as a Judge of a High Court. So much so, the minimum qualification required under Article 217(2) are required to be satisfied in the case of appointment of an Advocate General, which in this case, we have no doubt, the third respondent has.