GHANSHYAM CHANDRA MATHUR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition is directed against the order of the State Government, No. F. 31(1) Jud/77 dated 27th May, 1978, whereby Shri Radha Kishan Rastogi, respondent No. 3, was appointed as Advocate General for the State of Rajasthan.

(2.) THE contention of the learned Counsel for the petitioner is that in pursuance of Article 165 of the Constitution of India, the Government of each State shall appoint a person who is qualified to be appointed as Judge of a High Court to be Advocate General for the State Sub -clause (2) of Article 165 lays down the duties of Advocate General The qualifications for being appointed as a Judge of the High Court have been numerated in Article 217 of the Constitution of India. The contention of the learned Counsel for the petitioner is that Article 217(1) provides that the age of superannuation for a Judge of the High Court would be the age of 62 years. His contention is that as academic and other qualifications apply to the post of Advocate General, there is no reason why the age limit of 62 years as laid down for a High Court Judge under Article 217 be not made applicable to the post of Advocate General. It was further contended that Shri Rastogi, even on the date of appointment, was much older to 62 years and as such his appointment is void ab initio being in contravention of Article 217(1) of the Constitution of India. Attention was also invited to Sub -clause (1) of Section 7 of the Rajasthan Law and Judicial Department Manual which lays down that the Advocate General is appointed under Section 492 of the Code of Criminal Procedure, 1898 (V of 1998) to be Public Prosecutor for all cases before the High Court. It was further contended that Section 13 of the said Manual provides that no person shall be appointed as a Public Prosecutor unless he agrees in writing to take no part in politics during the tenure of his appointment and give a declaration in writing that he is free from pecuniary embarrassment.

(3.) THE learned Counsel for the petitioner has placed reliance on State of Rajasthan v. Fetch Chand : AIR1970SC1099 , wherein it has been held that Rule 12 thus lays down the minimum academic qualifications required for eligibility to apply for the post of a Lower Division Clerk, while the rules as to posing the examination hold under Rule 7, as to nationality, age and physical fitness etc. are other qualifications required for the purpose of recruitment It follows, therefore, that before a person can be recruited, he has to have not only the minimum academic qualifications required under Rule 12, but other qualifications also, namely, nationality, age and the necessity of his having to pass the examination under Rule 7 held on such terms and conditions laid down by the Government under that Rule.