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Ghanshyam Chandra Mathur v. The State Of Rajasthan And Two Ors.
Structured Summary of the Opinion
Factual and Procedural Background
This writ petition was filed challenging the State Government's order No. F. 31(1) Jud/77 dated 27th May, 1978, by which Shri Radha Kishan Rastogi (respondent No. 3) was appointed as Advocate General for the State of Rajasthan.
The petitioner, who identifies himself as the General Secretary of the Bar Association, Jaipur, sought relief on grounds that the appointment contravened constitutional and departmental rules concerning qualifications and age limits applicable to the office of Advocate General and/or Public Prosecutor.
The petition advanced constitutional arguments (relying on Articles 165 and 217 of the Constitution of India), provisions and practices set out in the Rajasthan Law & Judicial Department Manual (specifically Sections 7(1), 13 and 15), and multiple precedents and authorities. The petition was dismissed in limine by the court.
Legal Issues Presented
- Whether the age limit of 62 years provided in Sub-clause (1) of Article 217 of the Constitution of India (the age of superannuation for a Judge of a High Court) applies to the appointment to the post of Advocate General for a State.
- Whether the appointment of the respondent as Advocate General was ultra vires because of alleged non-compliance with the Rajasthan Law & Judicial Department Manual provisions governing Public Prosecutors (Sections 13 and 15), particularly the rule that ordinarily no person shall be appointed or continued as Public Prosecutor after attaining the age of 60 years.
- Whether, in the circumstances, the fact that the respondent was alleged to be associated with a political organisation (as alleged by the petitioner) affected the validity of his appointment, including whether the Court could take judicial notice of newspaper articles relied upon to establish such association.
Arguments of the Parties
Petitioner's Arguments
- Article 165 requires the Advocate General to be a person who is qualified to be appointed as a Judge of a High Court; Article 217 sets out qualifications for High Court Judges including the age of superannuation (62 years under Article 217(1)). Therefore, the petitioner contended that the age limit of 62 years applicable to High Court Judges should also apply to the Advocate General.
- Shri Radha Kishan Rastogi was alleged to have been older than 62 years at the date of appointment, and thus his appointment was claimed to be void ab initio as in contravention of Article 217(1).
- Under the Rajasthan Law & Judicial Department Manual: (a) Section 7(1) indicates that the Advocate General is appointed under Section 492 of the Code of Criminal Procedure (to be Public Prosecutor before the High Court); (b) Section 13 requires a written undertaking to avoid political activity and a declaration of freedom from pecuniary embarrassment; and (c) Section 15 provides that a Public Prosecutor is ordinarily not to be appointed or continued after the age of 60 years. The petitioner argued these Manual provisions supported invalidating the appointment.
- The petitioner relied on multiple precedents (State of Rajasthan v. Fetch/Fateh Chand; Mohambaram v. Javavelu; Dhelpur Co-operative Transport...; Hargovind v. Raghukul; K.M. Joseph v. State; Jaisinghani v. Union of India; Nadir Khan v. State) to support contentions about required qualifications, the public nature of the office of Public Prosecutor/Advocate General, the need to avoid political patronage, and the Court's power to take judicial notice of newspaper articles.
- The petitioner asserted a public interest in maintaining high standards for appointment to the office of Advocate General and alleged that respondent No. 3 was the Executive Head of the RSS (asserted to be a political organisation), referring to newspaper articles and requesting the court to take judicial notice of such material.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Rajasthan v. Fetch Chand | Interpreting recruitment rules: Rule 12 (minimum academic qualifications) and other rules prescribing nationality, age and physical fitness; showing that eligibility may require multiple rule-based qualifications. | The petitioner relied on this decision to argue that qualifications beyond academics (such as age) must be satisfied. The court noted the reliance and later distinguished the present case on the ground that, unlike that case, the Constitution/Manual did not enumerate an age limit for Advocate General. |
| State of Rajasthan v. Fateh Chand (Supra) | Same context as above (the opinion cites this decision in relation to qualifications and interplay of multiple rules). | The court observed that the Fateh Chand decision had force where various rules explicitly specified age, nationality and other eligibility criteria; in the present case such specifications were not enumerated for Advocate General and therefore the precedent did not mandate the result sought by the petitioner. |
| Mohambaram v. Javavelu, AIR 1970 May 63 | Held that the office of Public Prosecutor involves duties of public nature and is of vital public interest; the Public Prosecutor is a public office and appointment can be challenged by writ (quo warranto). | The court recorded that the petitioner relied on this principle to emphasise the public importance of the office. The opinion does not indicate that this precedent led the court to invalidate the appointment; rather it is noted as part of the petitioner's submissions. |
| Dhelpur Co-operative Transport and Multipurpose Union Ltd. Bholpur v. Appellate Authority, Rajasthan, Jaipur (1954 RLW 649) | Invoked to show the capability or required high calibre of a person to be appointed to a high public office (as relied upon by the petitioner). | The court noted the petitioner's reliance on this authority to argue that the Advocate General should be a person of high calibre. The opinion does not record any further application of this case to alter the outcome. |
| Hargovind v. Raghukul | Authority cited for the public policy that appointments after retirement to higher offices should be scrutinized; emphasises purity of public office and avoidance of patronage. | The court acknowledged the petitioner's reference to this authority. The opinion records the principle but does not rely on it to invalidate the appointment in the facts before the court. |
| K.M. Joseph v. State | Observed that it is an abuse of executive power to create posts or make appointments for political objects or on extraneous considerations. | The court noted the petitioner's reliance on this observation. The opinion does not find or record that appointments in this case were made for such impermissible objects; it does not rely on this precedent to quash the appointment. |
| Jaisinghani v. Union of India | Held that absence of arbitrary power is essential to the rule of law; cited by petitioner in support of fair appointment practices. | The court recorded the petitioner’s reliance on the case but did not apply it as a basis for setting aside the challenged appointment in this opinion. |
| Nadir Khan v. State | Cited for the proposition that the Court may take judicial notice of newspaper articles or statements in the interests of justice. | The court noted the petitioner’s reliance on Nadir Khan for seeking judicial notice of press reports alleging political association of the respondent; the opinion does not indicate that such judicial notice altered the outcome. |
Court's Reasoning and Analysis
The court framed the central legal question as whether the age limit of 62 years under Article 217(1) (superannuation of a High Court Judge) applies to the post of Advocate General.
The court analysed the constitutional provisions cited by the petitioner:
- Article 165 requires that the Advocate General shall be a person who is qualified to be appointed as a Judge of a High Court.
- Article 217 sets out qualifications for appointment as a Judge of a High Court, and Sub-clause (1) of Article 217 specifies the age of superannuation (62 years) for High Court Judges.
The court observed that Article 165 does not itself prescribe an age of superannuation for the Advocate General. From this omission the court drew the conclusion that the age of superannuation that applies to a High Court Judge (under Article 217) does not automatically apply to the office of Advocate General. In short, the court treated the text of Article 165 (which requires qualification equivalent to High Court Judge) as not incorporating, by necessary implication, the superannuation age laid down separately in Article 217.
The court then considered the Rajasthan Law & Judicial Department Manual provisions invoked by the petitioner. It noted:
- Section 7(1) of the Manual indicates that the Advocate General is appointed (for High Court prosecutions) under Section 492 of the Code of Criminal Procedure and holds the office of Public Prosecutor by virtue of that provision of the Manual.
- Section 13 requires certain undertakings (no political activity; declaration of freedom from pecuniary embarrassment) as conditions for appointment as Public Prosecutor.
- Section 15 provides that a Public Prosecutor shall be appointed for a period of three years and that ordinarily no person shall be appointed or continued as Public Prosecutor after attaining the age of 60 years.
The court specifically analysed the word "ordinary" used in Section 15 and relied on its dictionary meaning ("in the ordinary course of events") to conclude that the provision conveys a degree of discretion to the State Government in appointments of Public Prosecutors — i.e., the Manual's phrasing contemplates exceptions to the stated age guidance rather than an absolute bar.
Addressing the petitioner's contention that the respondent's alleged political association (leadership of the RSS) made the appointment invalid, the court observed that whether the RSS is a political organisation or not was not a matter to be conclusively decided in Article 226 proceedings in the context of this petition. The court noted the petitioner had relied on press material and sought judicial notice, but the opinion does not record a finding that such material invalidated the appointment.
After considering the constitutional text, the Manual provisions, and the authorities cited by the petitioner, the court concluded that there was no ground made out to interfere with the appointment by issuance of any writ. The court emphasised that, unlike the situation in the cited Rule interpretation cases (e.g., Fateh Chand), the Constitution and the Manual did not enumerate an age limit for the Advocate General that would mandate the result urged by the petitioner; additionally, the Manual's use of "ordinary" indicated governmental discretion regarding age in appointments of Public Prosecutors.
Holding and Implications
Final Disposition: The court dismissed the writ petition in limine. The opinion states: "The writ petition is accordingly dismissed in limine."
Implications:
- The direct effect is that the challenged appointment of Shri Radha Kishan Rastogi as Advocate General was upheld by the court and not set aside on the grounds advanced in the petition.
- The court declined to read the age of superannuation for High Court Judges (Article 217(1)) into Article 165 so as to apply that age-limit to the office of Advocate General; therefore, no automatic application of the High Court Judge superannuation age to the Advocate General was made in this opinion.
- The opinion does not purport to lay down a broader precedent beyond the facts and reasoning set out; it dismisses the petition on the basis that the petitioner did not make out a case for interference. The court did not set aside the appointment and did not hold that the Manual's provisions create an absolute statutory or constitutional bar in the circumstances presented.
Note: This summary is limited to and based exclusively on the information contained in the provided opinion. Sections or statements not present in the opinion have not been added or inferred.
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 & 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 also invited the attention of the Court to Section 15 of the Manual wherein it has been laid down that a Public Prosecutor shall be appointed for a period of three years, including the period of his probation and may be reappointed for further periods not exceeding three years at a time Ordinarily, no person shall be appointed a Public Prosecutor after he attains the age of 60 years or continued in that office after he attains that ago. Notwithstanding the expiry of the period, of his term of appointment, a Public Prosecutor shall continue as such until he is re-appointed or his successor is appointed.
4. The learned Counsel for the petitioner has placed reliance on State of Rajasthan v. Fetch Chand , 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.
5. The learned Counsel has also relied on Mohambaram v. Javavelu AIR 1970 May 63, wherein it has been held that the office of Public Prosecutor involves duties of public nature & of vital interest to the public. Provisions under sections 417, 493, 422 & 494 of the Criminal PC bring out the imporsance of that office. These show that Public Prosecutor is not a just an Advocate engaged by the State to conduct its prosecutions. The importance of the office from the point of view of the State and the community is brought out in Section 494, Criminal PC which vests in the Public Prosecutor discretion to apply to the Court for its consent to the draw from the prosecution of any person. It was further held in this ruling that the office of Public Prosecutor is a public office and hence an appointment to that post can form the subject-matter of a petition under Article 226 seeking a writ of quo warranto.
6. It was further contended by the teamed counsel for the petitioner that a reference to Dhelpur Co-operative Transport and Multipurpose Union Ltd. Bholpur v. Appellate Authority, Rajasthan, Jaipur 1954 RLW 649 would show the capability of the respondent No. 3. The contention was that a person to be appointed as Advocate General for a Slate should be a person of high caliber.
7. It was further contended that the petitioner is the General Secretary of the Bar Association, Jaipur and as such, he is very much interested in seeing that the dignity of the office of the Advocate General is maintained and that no-body is appointed to such an office because he happens to be actively associated with a political party. It was contended that the petitioner has brought this writ petition only with a view to impress that high standards have to be maintained by the State in making such appointments of public importance. Reference was made to Hargovind v. Raghukul , wherein the Supreme Court has held that paramount public policy underlying the need to ban appointment of holders of public offices after retirement to higher offices and posts under the Government. It was further held that a note of caution is needed as Creaser's wife must be above suspicion, that purity of public offices of high status is a constitutional value in itself, that nothing should be done which may create an impression that a holder of a public office can look forward to a higher appointment after retirement if he pleases the Government of the day and that no appointments should be made which may lend support to the criticism of favouritism or patronage and consequential weakening of credibility. The confidence of the community in the key instrumentalities is of considerable significance in the maintenance of the rule of law.
8. Reliance was placed on K.M. Joseph v. State , wherein it was observed that it will be an abuse of the executive power of the State, if posts are created in public service and appointments are made thereto, for achieving political objects or on considerations which are extraneous and irrelevant to the objects for which the power is vested in the State.
9. Reliance was also placed on Jaisinghani v. Union of India , wherein it has been held that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.
10. The learned Counsel for the petitioner has also contended that the respondent No. 3 is the Executive Head of the RSS, which is a political organisation. He made reference to certain articles and news reports in the papers to testify his contention. His further submission was that the Court is entitled to take judicial notice of such articles and statements in the newspapers in the interests of justice. Reference be made to Nadir Khan v. State .
11. The learned Counsel for the petitioner also referred to Corpus Juris wherein the word "qualified" has been defined to mean eligible, entitled, endowed, with the qualifications fit or suitable for the purpose possessed of endowments or accomplishments, or intellectual capacity, or moral worth to discharge the duties of an office, and in another some, having performed the acts which one chosen is required to perform before he can enter into office.
12. The basic question for consideration in this writ petition is, whether the age limit of 62 years as envisaged in Sub-clause (1) of Article 217 of the Constitution of India would apply to the appointment to the post of Advocate General. Article 165 lays down that the Advocate General must be qualified to be a High Court Judge. Under Article 217(2) certain qualifications have been laid down for appointment as a Judge of the High Court. The Edge of superannuation has also been mentioned in Sub-clause (1) of Article 217. On the contrary, no age of superannuation has been mentioned in Article 165 of the Constitution of India. This clearly means that the age of superannuation which applies to a High Court Judge, does not apply to the office or the Advocate General. The learned Counsel for the petitioner has relied on the Manual refereed to above wherein it has been stated that Public Prosecutor shall rot ordinarily be appointed beyond the age of 60 years. The word "ordinary" has been defined in the Webster. Third New International Dictionary as in the ordinary course of event. The use of the word 'ordinary' is indicative of the fact that certain amount of discretion has been feft with the State Government in making appointments even of Public Prosecutors. The Advocate General holds office of the Public Prosecutor by virtue of Section 7(1) of the Manual.
13. The contention of the learned Counsel for the appellant that in view of Sections 13 and 15 of the Manual the appointment of the respondent No. 3 as a Public Prosecutor should be held to be ultra vires of these Section. Whether the RSS is a political organisation or not, is not & matter which could be decided in the proceedings under Article 226 of the Constitution of India. As Article 165 of the Constitution of India does not lay down age of superannuation for the Advocate General, the contention of the learned Counsel for the petitioner is that the appointment of the respondent No. 3 as Advocate General is void ab initio as he was of an age exceeding 60 years on date of appointment, loses all force. If the framers of the Constitution of India really wanted to fix the age of superannuation of the Advocate-General to be 62 years as contended by the learned Counsel for the petitioner, then such an age limit would have been mentioned in Article 165 as is the case with the High Court Judge whose age of superannuation is specified in Article 217(1). The learned Counsel for the petitioner has placed reliance on State of Rajasthan v. Fateh Chand (Supra), wherein, qualifications regarding academic qualifications, required eligibility were held also to include his nationality, and the physical fitness. In that case, Rule 11 prescribes the minimum and maximum age and age and Rule 10 prescribes about the nationality and others. The contention of the learned Counsel based on State of Rajasthan v. Fateh Chand (supra) has thus no force because in that case all these specifications were given under the various rules. The Supreme Court while interpreting Rule 12 took into consideration the prior rules also. In the instant case the age of superannuation of the Advocate General has not been enumerated in the Constitution and the Rajasthan Law and Judicial Department Manual. Under these circumstances having given my most anxious consideration to the contentions raised by the learned Counsel for the petitioner, I am usable to hold, that any case is made out for interference by way of issuance of any appropriate writ.
14. The writ petition is accordingly dismissed in limine.
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