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2011 DIGILAW 884 (KER)

K. Madhusoodanan Nair v. State of Kerala

2011-08-05

C.N.RAMACHANDRAN NAIR, P.S.GOPINATHAN

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Judgment :- C.N. RAMACHANDRAN NAIR, J. 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 in as much 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 ie. 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. 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. Article 163: Council of Ministers to aid and advise Governor- (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Article 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 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. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of [sixty-two years]. Provided that- (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (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. Article 222. Transfer of a Judge from one High Court to another.- (1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.” Article 217, Appointment and conditions of the office of a Judge of a High Court- 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. 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 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 (AIR 2004 Allahabad 133) and a judgment of this Court in K.K. Bhaskaran v. State of Kerala (1983 KLT 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 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) ie. being a citizen of India and an advocate who has completed ten years of practice in a High Court. In this case, the third respondent has both the qualifications provided under Article 217(2) ie. 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. 4. The next question to be considered is how far the requirements applicable to appointment of a Judge applies in the case of appointment of an Advocate General. Article 217(1) stipulates that every Judge has to be appointed by the President of India, after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State concerned. These provisions are not applicable for appointment of Advocate General because Advocate General is appointed by the Governor on the advice of the Council of Ministers. It goes without saying that it is up to the Council of Ministers to consider while choosing the Advocate General the qualifications and abilities required of him because under Article 165(2) he has to advice the Government on all legal matters and to defend the Government policies and decisions in the High Court and wherever the Government demands. So much so, in our view, just as Chief Justice of the High Court and Supreme Court and Governor considers the eligibility or qualification required for appointment as a High Court Judge who has the minimum qualification prescribed under Article 217(2), the Council of Ministers will consider the suitability of a person with the same minimum qualification required for appointment as Judge of the High Court for appointment as Advocate General for the State. The only limitation is that the person to be appointed as Advocate General should have the minimum qualification as referred to in Article 217(2) of the Constitution. The only limitation is that the person to be appointed as Advocate General should have the minimum qualification as referred to in Article 217(2) of the Constitution. Clauses (a), (b) and (c) of Article 217(1) have no relevance so far as the appointment of Advocate General is concerned, because they apply to High Court Judges after the appointment. We cannot accept the contention of the petitioner that the third respondent on being ceased to be a Judge of the High Court by his failure to accept the transfer to the High Court of Gujarat disqualifies him for appointment as Advocate General. This is because he was appointed only as an Additional Judge for two years and even after ceasing to be a Judge on expiry of two years or on his ceasing to be a Judge on his failure to joint the other High Court on transfer, he is no disqualified from being considered again for appointment as a Judge, though practically it may not be happen. We hold so because we do not find any provision against the re-appointment of a person who has ceased to be a Judge on expiry of the duration of his appointment or on failure to join on transfer to the High Court to which he was transferred. 5. While considering the legality, constitutionality and propriety of appointment of Advocate General, we should keep in mind that the Advocate General is the main legal adviser to the State Government which is a politically elected body with specific policies and agendas. Essentially, the appointment of an Advocate General which is a constitutional post is selection of it’s lawyer by the litigant, which is the State. When it is the duty of the Advocate General to defend the policies and actions of the State, the State Government, constituted with the Council of Ministers should have absolute faith and trust in the Advocate General and so much so, the court should not normally interfere with the selection of the Advocate General by the State. We, do not find any disqualification under the Constitution for the third respondent for being appointed as Advocate General. We, do not find any disqualification under the Constitution for the third respondent for being appointed as Advocate General. Even though the petitioner has stated that on the date of assuming charge itself the Council of Ministers appointed the third respondent as Advocate General, we do not find anything surprising or unusual about it because the appointment of Advocate General is one of the most urgent and most important work of the Council of Ministers immediately on assuming charge. Petitioner has no case that the third respondent was appointed by the Governor otherwise than on advise of the Council of Ministers. So much so, there is no merit in this contention also. The writ petition is devoid of merits and it is accordingly dismissed.