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C.N. Ramachandran Nair, J.—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.
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:
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 insofar 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.
Article 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.
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.
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 Vs. Balwant Singh Chaufal and
Others, , the judgment of the Allahabad High Court in Manendra Nath Rai and Another Vs. Virendra Bhatia and Others, 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 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.
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. 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 join the other High Court on
transfer, he is not disqualified from being considered again for appointment as a Judge, though practically it may not 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.
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.
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.