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Civil Appeal Nos. 1134-1135 of 2002. Case: State of Uttaranchal Vs Balwant Singh Chaufal and Others. Supreme Court (India)

Judgment Cited authorities 3 Cited in 112 Precedent Map Related
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Case NumberCivil Appeal Nos. 1134-1135 of 2002
CounselFor Appellant: Dinesh Dwivedi, Sr. Adv., S.S. Shamshery and Rachna Srivastava, Advs and For Respondents: P.N. Gupta, Adv.
JudgesDalveer Bhandari & (Dr) Mukundakam Sharma, JJ.
IssueGovernment of India Act, 1935; Preventive Detention Act; Bonded Labour System (Abolition) Act, 1976; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Section 43; Water (Prevention and Control of Pollution) Act, 1974; ESSO (Acquisition of Undertaking in India) Act, 1974; Burma Shell (...
CitationAIR 2010 SC 2550, 2010 (4) AWC 4306 (SC), JT 2010 (1) SC 329, (2010) 2 MLJ 1127 (SC), 2010 (I) OLR 380 (SC), RLW 2010 (1) SC 506, 2010 (1) SCALE 492, (2010) 3 SCC 402, 2010 (2) UJ 511 (SC)
Judgement DateJanuary 18, 2010
CourtSupreme Court (India)

Judgment:

Dalveer Bhandari, J.

  1. These appeals have been filed by the State of Uttaranchal (now Uttarakhand) against the orders dated 12.7.2001 and 1.8.2001 passed by the Division Bench of the High Court of Uttaranchal at Nainital in Civil Miscellaneous Writ Petition No. 689 (M/B) of 2001.

  2. The appointment of L. P. Nathani was challenged before the High Court in a Public Interest Litigation on the ground that he could not hold the august Office of the Advocate General of Uttarakhand in view of Article 165 read with Article 217 of the Constitution. According to the respondent, Mr. Nathani was ineligible to be appointed as the Advocate General because he had attained the age of 62 years much before he was appointed as the Advocate General. The High Court entertained the petition and directed the State Government to take decision on the issue raised within 15 days and apprise the same to the High Court.

  3. The State of Uttaranchal preferred special leave petitions before this Court on 6.8.2001. This Court vide order dated 9.8.2001 stayed the operation of the impugned judgment of the High Court. Thereafter on 11.2.2002, this Court granted leave and directed that the stay already granted shall continue.

  4. It may be pertinent to mention that, despite the service of notice, the respondents who had initially filed the writ petition before the High Court challenging the appointment of Nathani as the Advocate General did not appear before this Court. This clearly demonstrates the non- seriousness and non-commitment of the respondents in filing the petition.

  5. Before we proceed to examine the controversy involved in this case, we deem it appropriate to set out Articles 165 and 217 of the Constitution dealing with the post of the Advocate General and the qualifications for appointment to this post in the Constitution. Article 165 which deals with the appointment of the Advocate General for the States is reproduced as under:

    "165. The 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.

  6. Article 217 which deals with the appointment and the conditions of the office of a Judge of a High Court is set out as under:

    217 - Appointment and conditions of the office of a Judge of a High Court.- (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;

    Explanation: For the purposes of this clause--

    (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

    (aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

    (b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act,1935, or has been an advocate of any High Court in any such area, as the case may be.

    (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final."

  7. The Division Bench of the High Court in the impugned judgment observed that the first clause of Article 165 insists that the Governor shall appoint a person as the Advocate General who is qualified to be appointed as a Judge of a High Court. 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" (at the relevant time the age of retirement of a Judge of the High Court was 60 years and now it is 62 years). The Division Bench further held that the real question then was 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. It was further held that 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. The Court further observed that the provisions 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. 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 as an Advocate General, say at the age of fifty-five years, there is no warrant for holding that he must cease to hold his office on his attaining sixty two years because it is so stated about a Judge of a High court in the first clause of Article 217. If that be a true position, as we hold it is, then the appointment is not bad because the person is past sixty two years, so long as he has the qualifications prescribed in the second clause of Article 217.

  8. 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 & Others AIR 1952 Nagpur 330, this controversy has been settled by the Division Bench of the Nagpur High Court and the said judgment was approved by a Constitution Bench of this Court in the case of Atlas Cycle Industries Ltd. Sonepat v. Their Workmen 1962 Supp. (3) SCR 89. In Karkare's case (supra), it was observed as follows:

    "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 Art. 221. The Advocate-General is governed by clause (3) of Art. 165 and receives such remuneration as the Governor may determine.

  9. What the first clause of Art. 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 Art. 217. It is true that the first clause of Art 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.

  10. The provision about duration in the first clause of Art. 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 Art. 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...

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