Skip to content


Dr. Chandra Bhan Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 837 of 1982
Judge
Reported inAIR1983Raj149; 1983()WLN101
ActsConstitution of India - Articles 165, 165(1), 217(1), 217(2) and 319
AppellantDr. Chandra Bhan Singh
RespondentState of Rajasthan and ors.
Appellant Advocate Jagdeep Dhankar, Adv.
Respondent Advocate M.I. Khan, Govt. Adv.,; C.N. Sharma and; N.D. Mantri
DispositionPetition dismissed
Cases ReferredSupreme Court T. C. Hingorani v. G. P. Misra
Excerpt:
.....the discharge of functions and duties of his office he is not controlled by the governor or the state government, because while giving advice to the state government upon any legal matter referred to him or while performing duties of a legal character assigned by the governor or while discharging the functions conferred on him by or under the constitution or any other law for the time being in force, he is free to exercise his discretion, though according to law, and according to his best ability, in the manner which he considers best. the governor or the state government is not empowered to ask him to discharge his functions or to perform his duties in the manner in which they like. prima facie, it is difficult to understand how he can be prohibited from appearing in any legal..........was further urged in the replies that the advocate general is in no way in the employment of the state government and so the bar contained in clause (d) of article 319 could not be made applicable to him. it was further pleaded that shri nathu lal jain, non-petitioner no. 3, was not disqualified to be appointed as advocate general for the state of rajasthan on account of his having already attained the age of 62 years.5. apart from the aforesaid contentions, following preliminary objections were raised to the maintainability of the writ petition:--(1) that the petitioner has no locus standi to challenge the appointment of the advocate general;(2) that the writ petition has not been filed bona fide but for political considerations;(3) that no notice was given to the non-petitioners.....
Judgment:

Kalyan Dutt Sharma, C.J.

1. By way of this writ petition under Article 226 of the Constitution Dr. Chandra Bhan Singh, petitioner, has challenged the appointment of Shri Nathu Lal Jain, non-petitioner No. 3, as Advocate General for the State of Rajas-than and prayed for issuance of a writ of quo-warranto against him and for an appropriate, writ, order or direction for quashing the appointment on the ground that it has been made in violation of the provisions of Articles 165 and 319(d) of the Constitution of India. The State of Rajasthan as well as His Excellency the Governor are also impleaded as non-petitioners Nos. 1 and 2 respectively in this writ petition.

2. The relevant facts giving rise to this writ petition may be briefly stated as follows:--

The office of the Advocate General for Rajasthan fell vacant after Dr. S. K. Tiwari had ceased to hold that office. In exercise of the powers conferred on him under Article 165 of the Constitution, His Excellency the Governor of Rajasthan appointed Shri Nathu Lal Jain, non-petitioner No. 3 as Advocate General for the State of Rajasthan, vide order D/- June 16, 1982. In pursuance of the said order Shri Nathu Lal Jain took charge of the office of the Advocate General and is working as such. It was alleged in the writ petition that Shri Nathu Lal Jain had been a member of the Rajasthan Public Service Commission for about five years prior to his appointment as Advocate General for the State of Rajasthan and after having ceased to hold the office of the member of the Rajasthan Public Service Commission, he could not legally be appointed as Advocate General in view of the absolute bar contained in Clause (d) of Article 319 of the Constitution, which reads as follows:--

'319. On ceasing to hold office --

(a) to (c) ............

(d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under Government of a State.'

It was further alleged in the writ-petition that Shri Nathu Lal Jain was not qualified for appointment as Advocate General on account of being not eligible or qualified to be appointed a Judge of a High Court, as required by Clause (1) of Article 165 of the Constitution. According to the petitioner, under the provisions of Clause (1) of Article 217 of the Constitution a person shall hold the office of a Judge of a High Court only, until he attains the age of 62 years. Shri Nathu Lal Jain having crossed the age of 62 years was not qualified to be appointed as a Judge of a High Court and so he could not be appointed as Advocate General for the State of Rajasthan, because under Clause (1) of Article 165 of the Constitution, the Governor could appoint a person as Advocate General, only if he was qualified to be appointed as a Judge of a High Court. The petitioner's grievance, therefore, is that the appointment of Mr. Nathu Lal Jain to the office of the Advocate General for Rajasthan is bad or illegal firstly, because he was debarred under Clause (d) of Article 319 of the Constitution for any other employment either under the Government of India or under the State of Rajasthan, as provided in that Article, and because he was not qualified to be appointed a Judge of a High Court on the date of his appointment as Advocate General for the State of Rajasthan. The writ petition is supported by the affidavit of the petitioner.

3-4. When this writ petition was put up for admission, a notice was issued to the non-petitioners to show-cause why it should not be admitted. In response to show-cause notice, written replies were filed on behalf of the State of Rajasthan and Mr. Nathu Lal Jain, non-petitioners Nos. 1 and 3 respectively. In the written replies the contention of the non-petitioners was that the appointment of Shri Nathu Lal Jain to the office of the Advocate-General for the State of Rajasthan is not illegal, invalid an, violative of Clause (d) of Article 319 and Clause (1) of Article 165 of the Constitution, because the Advocate General is a constitutional functionary exercising the powers conferred on him by Article 165 of the Constitution, and, as such, no relationship of servant and master exists between him and the State. It was further urged in the replies that the Advocate General is in no way in the employment of the State Government and so the bar contained in Clause (d) of Article 319 could not be made applicable to him. It was further pleaded that Shri Nathu Lal Jain, non-petitioner No. 3, was not disqualified to be appointed as Advocate General for the State of Rajasthan on account of his having already attained the age of 62 years.

5. Apart from the aforesaid contentions, following preliminary objections were raised to the maintainability of the writ petition:--

(1) that the petitioner has no locus standi to challenge the Appointment of the Advocate General;

(2) that the writ petition has not been filed bona fide but for political considerations;

(3) that no notice was given to the non-petitioners prior to the filing of the writ petition;

(4) that His Excellency the Governor is not answerable to the Court for exercising and performing the powers and duties assigned to him by the Constitution or for any act done or purported to be done by him in exercise of the performance of such powers and duties, therefore, no writ petition, direction or order could be issued to him.

6. The replies filed on behalf of the State and by Shri Nathu Lal Jain are supported by the affidavits of Shri Ram Niwas Sharma, Assistant Legal Remembrancer to the Government and by Shri Nathu Lal Jain, Advocate General himself respectively.

7. I have heard Mr. Jagdeep Dhan-kar, learned counsel for the petitioner, and Mr. C. N. Sharma, learned counsel for non-petitioner, and Mr. M. I. Khan, Government Advocate, at length at the stage of admission and perused the record. Upon perusal of the record, I am of the view that this writ petition is not worth admission and is liable to be dismissed at the initial stage of admission for the reasons quoted below in extenso.

8. The first contention put forward by Mr. Jagdeep Dhankar, learned counsel for the petitioner, is that Shri Nathu Lal Jain, non-petitioner No. 3, who had held the office of a member of the Rajas-than Public Service Commission was debarred from employment after the termination of his office in the Commission to any other office under the Government of India or of a State in view of the express bar contained in Clause (d) of Article 319 of the Constitution, which has been Quoted above by me. In support of his above contention he relied upon Shivnandan v. Punjab National Bank, AIR 1955 SC 404, Dharangadhra Chemical Works Ltd. v. State of Saurashtra, AIR 1957 SC 264 and Chintaman Rao v. State of M. P. AIR 1958 SC 388.

9. I have given my earnest consideration to the above contention and perused the authorities cited above. At the outset, I may observe that Shri Nathu Lal Jain, non-petitioner No. 3, admitted in his reply that he had held the office of a member of the Rajasthan Public Service Commission and after the termination of his office in the said Commission, he was appointed the Advocate General for the State of Rajasthan. Hence, the pertinent question that arises for determination is whether the express bar contained in Clause (d) of Article 319 of the Constitution can be made applicable to his new appointment as Advocate General for Rajasthan. Before dealing with this question, I may say that in order to apply this bar, the new appointment, after Shri Nathu Lal Jain ceased to be a member of the Rajasthan Public Service Commission, must be an employment under the Government of Rajasthan. According to the submission of the learned counsel for the petitioner, Shri Nathu Lal Jain holds his office of Advocate General during the pleasure of the Governor and the relationship between him and the Government is of master and servant, because the employer, i. e. Rajasthan Government has full control over him in the discharge of the functions and duties of his office. The contention on behalf of Mr. Nathu Lal Jain, on the other hand, is that even though he is appointed by the Governor as Advocate General, he holds his office under the Constitution without being subordinate to the Government of Rajasthan and the relationship between him and the Government is of client and the counsel. In my opinion, there exists no relationship of master and servant between the Advocate General and the Government, because, in the discharge of the functions and duties attached to his office, he is not subject to the control of the Government in a sufficient decree so as to make the Government his master. The legal concept of subordination or control includes the power of the master to direct the duties or functions to be done or performed by the subordinate or the servant, the manner in which they shall be done and performed, and, the means to be employed in doing or performing them, the time when and the place where they shall be done or performed. Having considered all these aspects of control, it can be said without difficulty that the position of Shri Nathu Lal Jain, Advocate General, in relation to the Government of Rajasthan is not that of servant and master but rather that of a counsel and client, because the Government cannot direct him to discharge his functions and duties In the manner in which it likes and, to sav in other words, has no right to con-trol the method of his doing work.

10. Clause (2) of Art 165 of the Constitution lays down the functions of the Advocate General as follows :--

(1) to give advice to the Government of the State upon such legal matters as may from time to time be referred to him by the Government;

(2) to perform such of the duties of legal character as may from time to time be assigned to him by the Governor.

(3) to discharge the functions conferred on him by or under the Constitution;

(4) to discharge the functions conferred on him by or under any other law for the time being in force.

11. Although under Clause (3) the office is held by the Advocate-General during the pleasure of the Governor and such remuneration is received by him, as may be determined by the Governor, yet, in my opinion, he cannot be treated as a Government servant on this score, because he holds the office to discharge the functions under the Constitution, as is evident from Clause (2) of Article 165 thereof without being subordinate to the Government of the State. For the discharge of functions and duties of his office he is not controlled by the Governor or the State Government, because while giving advice to the State Government upon any legal matter referred to him or while performing duties of a legal character assigned by the Governor or while discharging the functions conferred on him by or under the Constitution or any other law for the time being in force, he is free to exercise his discretion, though according to law, and according to his best ability, in the manner which he considers best. The Governor or the State Government is not empowered to ask him to discharge his functions or to perform his duties in the manner in which they like. Similarly, he is free to give such legal advice or assistance to private parties in all such cases in which he is not likely to be called upon to give advice to the Government or to conduct or argue them in the court on behalf of the State. In support of the view I have taken above, I may refer to an authority of the Supreme Court T. C. Hingorani v. G. P. Misra (Civil Appeal No. 564 of 1964 decided on 24th Sept., 1965) (reported in 1967 All WR (SC) 662), wherein the following observations were made by their Lordships:--

'Then as to his status as an Advocate simpliciter, he was entitled at the relevant time to practise as a matter of right as prescribed by S. 14 of the Indian Bar Councils Act, 1926 (38 of 1926). It is not disputed that the Advocate-General is not a Government servant though he receives remuneration on his appointment as Advocate-General under Article 165(3) and so there can be no doubt that subject to the other terms and conditions of his appointment as Advocate-General, he would be entitled 'to exercise his right as an Advocate and appear for private parties. Thus, whether the status of Mr. Misra is considered as an Advocate-General or as an Advocate. Prima facie, it is difficult to understand how he can be prohibited from appearing in any legal proceeding like the one with which the Allahabad High Court was dealing in the present case.'

Consequently. I have no hesitation in holding that Mr. Nathu Lal Jain, who has held the office as a member of the Rajasthan Public Service Commission, was not debarred from holding the office of the Advocate-General after termination of his office in the Rajasthan Public Service Commission.

12. Another contention put forward by Mr. Jagdeep Dhankar, learned counsel for the petitioner, before me is that the appointment of Mr. Nathu Lal Jain to the office of the Advocate-General is bad or illegal under Article 165 of the Constitution of India, as he was not qualified to be appointed a Judge of the High Court after attaining the age of 62 years. The above contention is devoid of force, because all that the first clause of Article 165 lays down is that a person, who is qualified for appointment as a Judge of a High Court, can be appointed Advocate-General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed under the second clause of Article 217 of the Constitution. The provision about duration of tenure of the appointment of a Judge of a High Court does not find place in Clause (2) of Article 217 and so the attainment of the age of 62 years cannot be regarded as a disqualification for appointment of a Judge of a High Court under Clause (2) of Article 217. In my opinion, the provision contained in Clause (1) of Article 217 that a Judge of a High Court shall hold office until he attains the age 62 years is not a provision prescribing a qualification for appointment of a Judge, but it appears to be a specific provision about the tenure or duration of a High Court Judge, Apart from this, all the constitutionals provisions, which relate to a Judge of a High Court, cannot be applied to the Advocate-General, as for example, the provisions about remuneration, and duration of appointment are quite different for the two offices. The Advocate-General receives such remuneration, as may be determined while a Judge of a High Court is governed in this matter by Article 221 of the Constitution. Likewise the Advocate-General shall hold office during the pleasure of the Governor while the duration of the appointment of a Judge of a High Court is fixed by reference to a particular age, i. e. age of 62 years. Consequently, there is no warrant for holding that the appointment of Shri Nathu Lal Jain to the office of the Advocate-General was or is illegal because he had crossed 62 years on the date he was appointed as Advocate-General. It is not the case of the petitioner that Mr. Nathu Lal Jain does not possess the qualifications prescribed under Article 217 of the Constitution of India for appointment of a Judge of a High Court. In this view of the matter, this contention of Mr. Jagdeep .Dhankar has no substance.

13. The result of the above discussion is that the writ petition filed by Dr. Chandra Bhan Singh has no force and is hereby dismissed at the stage of admission. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //