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Manendra Nath Rai And Another v. Virendra Bhatia And Others

Allahabad High Court

Sep 24, 2003

Judgment

Subsequent
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Structured Summary of the Court's Opinion

Factual and Procedural Background

This Public Interest Litigation was filed by two practising Advocates of the High Court—Sri Manendra Nath Rai (petitioner No. 1) and Sri Sushil Kumar Singh (petitioner No. 2)—challenging the appointment of Sri Virendra Bhatia as Advocate General of the State. The appointment complained of occurred on 16-9-2003. Petitioner No. 1 (Sri Manendra Nath Rai) argued the petition in court and petitioner No. 2 adopted those arguments. The petition raised constitutional objections to the appointment and sought judicial intervention.

Legal Issues Presented

Whether the Governor was required to consult the Chief Justice of the State prior to appointing the Advocate General (an issue raised by reference to Article 217(1) of the Constitution).
Whether the qualifications for appointment as Advocate General must include a further assessment of "suitability" beyond the eligibility criteria in Article 217(2), and whether consultation with the Chief Justice is necessary to test such suitability.
Whether the appointment of Sri Virendra Bhatia as Advocate General violated the petitioners' fundamental rights under Articles 14 and 16 of the Constitution.
Whether a person's political association (here, alleged association with the Samajwadi Party) disqualifies them from appointment as Advocate General.
Whether the Governor's discretion in appointing the Advocate General is amenable to judicial review under Article 226 of the Constitution in the facts of this case.

Arguments of the Parties

Petitioners' Arguments

The petitioners relied on Article 217 of the Constitution, particularly Article 217(1), and submitted that the Governor should consult the Chief Justice of the State before appointing the Advocate General (drawing parallel with appointment of High Court Judges).
Although they admitted that Sri Virendra Bhatia satisfied the ten-year advocate eligibility under Article 217(2)(b), they contended that eligibility alone is insufficient and that the Governor should assess "suitability", which—according to them—required consultation with the Chief Justice.
They contended that the appointment violated Articles 14 and 16 of the Constitution.
They also alleged that Sri Virendra Bhatia's active association with the Samajwadi Party (including contesting an election and holding positions in party-affiliated lawyer forums) made him an unsuitable appointee.

Respondent's (State) Arguments

The learned Chief Standing Counsel, Sri S.A.H. Rizvi, submitted that reference to Article 217(1) was misplaced and not applicable to appointments of Advocate General under Article 165.
He argued that the petitioners' fundamental rights under Articles 14 and 16 were not infringed by the appointment.
With respect to political association, he submitted there is no constitutional bar on appointing a person associated with a political party as Advocate General.
He further contended that the Governor's discretion in appointing the Advocate General is not susceptible to challenge under Article 226 in the circumstances of the case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Atlas Cycle Industries, Ltd., Sonepat v. Workmen, AIR 1962 SC 1100	The Supreme Court's distinction that the age prescription in Article 217(1) is a condition governing the office (attached to its duration) rather than a personal "qualification" for appointment; and the difference between conditions of office and qualifications under Article 217(2).	The court relied on this reasoning to support the proposition that prescribing similar eligibility criteria for appointment (e.g., qualifications) does not require importing the procedural safeguards or consultation requirements applicable to High Court Judge appointments (Article 217) into appointments of Advocate General made under Article 165.

Court's Reasoning and Analysis

The court proceeded by focusing on the constitutional text and structure. It began by identifying the relevant provision for appointment of the Advocate General: Article 165(1), which provides that "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." The court made the following analytical points (as stated in the opinion):

Article 165(1) empowers the Governor to appoint, and that the appointment is a discretionary act of the Governor to be exercised on his own discretion and not on the aid and advice of the Council of Ministers (the Governor's discretion in this matter is characterized as personal and discretionary).
Clause (3) of Article 165 makes explicit that the Advocate General holds office at the pleasure of the Governor; thus the doctrine of pleasure governs tenure. The court emphasized that the appointment is made on that doctrine.
The court stated a principle limiting judicial review: the Governor's discretion in appointing the Advocate General would not be open to judicial review "unless the appointment so made is grossly in violation of the provisions of the Constitution," for example if the appointee lacked the qualifications in Article 217(2)(a) or (b) or if some other disqualification applied. The court noted that the petitioners did not dispute the appointee's eligibility qualifications.
The court rejected the petitioners' attempt to import Article 217(1)'s consultation requirement into appointments under Article 165. It reasoned that Article 217 deals specifically with appointment and conditions of High Court Judges (Chapter V, Part VI) while Article 165 (in Chapter II of Part VI) governs the Advocate General; these provisions operate in different fields and cannot be cross-applied to create a requirement of consultation with the Chief Justice for appointment of the Advocate General.
The court contrasted the tenures and remuneration schemes under the two provisions (Advocate General holds office at pleasure; High Court Judges hold office till age 62; remuneration considerations differ) to illustrate that the two appointment regimes are functionally distinct and not overlapping.
The court relied on the Atlas Cycle Industries decision to support the conceptual distinction between conditions relating to the office (such as age limits) and personal qualifications, and used that distinction to reject the argument that the eligibility criteria for a High Court Judge import the procedural requirements of Article 217 into Article 165 appointments.
On Articles 14 and 16, the court found no substance in the petitioners' contention that those fundamental rights were violated by the appointment.
Regarding the appointee's political association, the court observed that the Constitution contains no bar on appointing a person associated with a political party as Advocate General. That consideration, while noted, did not render the appointment invalid and remained within the Governor's discretion.
The court found nothing on record to indicate that the Governor did not exercise his discretion under Article 165 in making the appointment; the mere allegation of political association did not establish that discretion was not exercised.

Holding and Implications

HOLDING: The petition challenging the appointment of Sri Virendra Bhatia as Advocate General of the State is DISMISSED. The court explicitly recorded that it did not find merit in the challenge.

Implications and immediate consequences:

Direct effect on the parties: The appointment of Sri Virendra Bhatia as Advocate General stands; the writ petition was dismissed and no relief was granted to the petitioners.
On judicial review: The opinion reaffirms that the Governor's discretion to appoint an Advocate General under Article 165 is not readily subject to judicial interference unless there is a gross constitutional violation (for example, absence of statutory/constitutional qualifications or presence of a disqualification), and that procedural safeguards applicable to judicial appointments under Article 217 (such as consultation with the Chief Justice) cannot be read into Article 165 appointments.
On broader precedent: The court applied existing precedent (Atlas Cycle Industries) to support its interpretative distinctions but did not purport to lay down a novel doctrine; the decision upholds the view that appointment procedures for Judges under Article 217 are distinct from appointments of Advocate General under Article 165.

Other Observations by the Court

The court expressed displeasure at the manner in which the petition was filed, observing that the practising advocates who brought the petition ought to have consulted the provisions of Articles 217 and 165 of the Constitution before filing. The court hoped that persons occupying the office of Advocate General would uphold the rule of law irrespective of prior political leanings.

Show all summary ...

1. This writ petition has been filed in the nature of Public Interest Litigation by two practising Advocates of this Court challenging the appointment of Sri Virendra Bhatia as Advocate General of the State. The petition has been argued by Sri Manendra Nath Rai, petitioner No. 1 in presence of Sri Sushil Kumar Singh, petitioner No. 2, who has stated that he adopt the arguments advanced by Sri Manendra Nath Rai.

2. On the formation of the present Government, Sri Virendra Bhatia has been appointed as Advocate General of the State on 16-9-2003. While making a challenge to the aforesaid appointment of Sri Virendra Bhatia, the petitioner, Manendra Nath Rai has drawn attention of the Court to Article 217 of the Constitution of India. His submission is that even in the case of appointment to the office of the Advocate General the Governor has to consult or should consult the Chief Justice of the State. For elaborating the aforesaid argument, he has placed reliance upon Article 217(1) of the Constitution of India, which provides consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court.

3. The other point is regarding the qualifications of a person for being appointed as Judge of the High Court as given in Clause (2) of Article 217 of the Constitution.

4. Sri Rai though admitted that Sri Virendra Bhatia has been an Advocate for more than ten years period as is required in sub-clause (b) of Article 217(2) of the Constitution but asserts that possession of this qualification only makes him eligible for being appointed as Advocate General but it does not necessarily mean that he is also suitable for being appointed as such. According to him, mere possession of the eligibility qualification would not be sufficient for the appointment of the Advocate General, but his suitability has also to be adjudged. His further argument is that for testing the aforesaid criteria, the Governor ought to have consulted the Chief Justice of the State before making the appointment, but no such consultation has been done and, therefore, the appointment cannot be said to have been made in accordance with the provisions of the Constitution.

5. The next argument, which has been advanced by the petitioner is that by making such an appointment the fundamental right as guaranteed under Articles 14 and 16 of the Constitution are violated. In Para 15 of the writ petition, it has been asserted and arguments have also been advanced that Sri Virendra Bhatia is a committed member of Samajwadi Party and has contested the election on its ticket at Lucknow though unsuccessfully and that he is President of National Forum of Lawyers of Samajwadi Party and that Sri Virendra Bhatia has also been associated with political parties since beginning, therefore, also he could not have been appointed as Advocate General.

6. In response Sri S.A.H Rizvl, learned Chief Standing Counsel has submitted that reference to Article 217(1) of the Constitution is wholly out of context in the matter of appointment of Advocate General. He has further submitted that no fundamental right of the petitioners has been violated and there is no violation of Articles 14 and 16 of the Constitution nor the same are attracted in the circumstances of the case. With respect to the argument that Sri Virendra Bhatia has been associated with a political party since beginning and has contested the election on the ticket of the Samajwadi party, he has submitted that firstly, there is no bar under the Constitution to make a person as Advocate General, if he is associated with some political party; and secondly, the discretion exercised by the Governor cannot be questioned under Article 226 of the Constitution in the matter of appointment of Advocate General.

7. The appointment of Advocate General is to be made under Article 165(1) of the Constitution of India, which reads as under:

“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.”

8. Clause (1) of Article 165 of the Constitution empowers the Governor of each State to appoint a person who is qualified to be appointed as a Judge of High Court as the Advocate General of the State.

9. It is the duty cast upon the Governor of each State, for appointing a person as Advocate General of the State, from amongst the persons, who are qualified to be appointed as a Judge of the High Court. The power of the Governor is discretionary and is not to be exercised on the aid and advice of the Council of the Ministers. It is the self-discretion or on his own discretion that the Advocate General is to be appointed by him. The only requirement or the consideration, which has to weigh with the Governor is that, that person, whom he is going to appoint as Advocate General, is qualified to be appointed as Judge of the High Court. Clause (3) of Article 165 of the Constitution of India makes it explicit that Advocate General shall hold office on the pleasure of the Governor. The appointment of the Advocate General has been made on the doctrine of pleasure viz. the pleasure of the Governor. The discretion so exercised under the Constitution in making the appointment of Advocate General by the Governor would not be open to the judicial review unless the appointment so made is grossly in violation of the provisions of the Constitution e.g the person so appointed may not possess either of the qualifications as provided under Article 217(2)(a) and (b) of the Constitution or he attributes to himself any other disqualification, if any, either under the Constitution or under any other law. We have already observed that the petitioner does not dispute the eligibility qualification of Sri Virendra Bhatia for being appointed as Advocate General.

10. The argument that the provision of sub-clause (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a High Court. The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate General. The appointment of Advocate General is not governed by the aforesaid Article which falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals with the appointment of Advocate General for the State falls in Chapter II of Part 6. The scheme of the Constitution for the appointment of Advocate General as well as for appointment of a Judge of the High Court is totally different.

11. Sub-clause (1) of Article 217 of the Constitution cannot be inserted or attracted for the appointment of the Advocate General under the Constitution. Reference can be made to the tenure of Advocate General as given in the Constitution and the tenure of the High Court Judge. While Advocate General holds office at the pleasure of the Governor, the High Court Judge holds office up to the age of 62 years as given in the Constitution itself. The two provisions thus operate entirely in two different fields and there cannot be overlapping or encroachment by either of the two provisions. Apart from this, the remuneration of the Advocate General has to be determined by the Governor in view of clause (3) of Article 165 of the Constitution, whereas no such discretion vests in either of the authority under Article 217 of the Constitution will respect to High Court Judge.

12. In the case of Atlas Cycle Industries, Ltd., Sonepat v. Workmen, AIR 1962 SC 1100, the Apex Court had the occasion to consider as to whether in view of Section 7(3)(c) of Industrial Disputes Act Sri A.N Gujral was not qualified for being appointed as member as he was over 60 years of age and therefore the Tribunal was not validly constituted. Reliance was placed on the qualification for being appointed member of the Tribunal, viz. a person should be eligible for being appointed as a High Court Judge. Since Sri A.N Gujral on the date of appointment had crossed the age of 60 years, therefore, it was said that he could not have been appointed as member. The Supreme Court as observed has under:—

“(9) We agree that there is implicit in Art. 217(1) a prohibition against appointment as a Judge of a person who has attained the age of sixty years. But, in our view, that is in the nature of a condition governing the appointment to the office-not a qualification with reference to a person who is to be appointed thereto. There is manifest on the terms and on the scheme of the article a clear distinction between requirements as to the age of a person who could be appointed as a Judge and his fitness based on experience and ability to fill the office. Art. 217(1) deals with the former, and, in form, it has reference to the termination of the office and can therefore be properly read only as imposing, by implication, a restriction on making the appointment. In strong contrast to this is Art. 217(2) which expressly refers to the qualifications of the person to be appointed such as his having held a judicial post or having been an advocate for a period of not less than ten years. We think that on a true construction of the article the prescription as to age is a condition attached to the duration of the office and not a qualification for appointment to it.”

13. Prescribing the same eligibility criteria and qualification for appointment of a Judge of the High Court and that of the Advocate General of the State would not mean that the same procedure is to be adopted in making the two appointments. The appoint of a Judge of the High Court is to be made in consonance with the provisions of Article 217(1), whereas the Advocate General is appointed in accordance with the provisions of Article 165(1) of the Constitution. There is no ambiguity in either of the two provisions.

14. Sri Manendra Nath Rai has argued that Article 217(2) of the Constitution does not directly prescribe the qualification for being appointed as High Court Judge but as a matter of fact prescribes restriction and disqualification against a person, who cannot be appointed as High Court Judge. The effect is the same that a person, who does not possess either of the two qualifications, mentioned under Article 217(2) sub-clause (a) and (b) would not be eligible and would not be qualified for being appointed as High Court Judge. The appointment of High Court Judge has nothing to do with the appointment to the office of the Advocate General.

15. We do not find any substance in the aforesaid argument.

16. We also do not find any substance in the arguments of the petitioner that by appointment so made the Fundamental Rights of any person guaranteed under Articles 14 and 16 of the Constitution are violated.

17. The concern shown by the petitioner about the appointment being made despite the incumbent having association with the political party is not of much relevance in the circumstances of the case, as we have already observed that there is no bar under the Constitution that such a person cannot be appointed as Advocate General of the State. It however, would always be the discretion of the Governor in the matter of appointment of the Advocate General, which discretion, we do not have any reason to believe or apprehend, would not be exercised in the manner, so that a right and better person is always appointed to this constitutional office.

18. We further hope and trust that any person who occupies the high seat of Advocate General, would make all endeavour to uphold the rule of law, irrespective of his leaning towards any party, if at all, there had been any such leaning before his appointment as Advocate General.

19. In the instant case, there is nothing on record to indicate that the appointment of Sri Virendra Bhatia as Advocate General was not made at the discretion of the Governor, but was made otherwise. Simply because as per allegation of the petitioners the person is associated with a political party, it would not necessarily mean that while such a person has been appointed, the discretion has not been exercised by the Governor under Article 165 of the Constitution. We do not find any good ground to record our observations to the contrary in this regard. No other point has been pressed.

20. For the reasons stated above, we do not find any merit in the challenge made to the appointment of Sri Virendra Bhatia as Advocate General of the State.

21. The petition is hereby dismissed.

22. Before parting with the judgment, we are constrained to observe that the practising Advocate of the High Court before filing the petition ought to have looked into the provisions of Articles 217 and 165 of the Constitution of India on the basis of which they have filed this petition. We express our displeasure in the manner in which the petition has been filed.

23. Petition dismissed.