JUDGMENT :

S. KUMAR, J.

Petitioner has prayed for following reliefs:-

(i) For the issuance of a writ of Quo Warranto asking the respondent, particularly the respondent no.3 to show, to the satisfaction of this Hon’ble Court as to under what legal/constitutional authority he is holding the office of the Advocate General, Bihar.

(ii) For the issuance of a writ of mandamus holding that the respondent no.3 is illegally occupying the office of the Advocate General, Bihar and his continuance as the Advocate General of the State is in violation of Article 165(3) of the Constitution of India.

(iii) For the issuance of any other appropriate writ/direction/order holding that the respondent no.3 is in illegal occupation of the office of the Advocate General, Bihar.”

2. Petitioner seeks writ of quo warranto for removal of respondent no.3, who is at present holding the post of Advocate General, Bihar being in violation of Article 165(3) of Constitution of India.

3. Petitioner submits that in July, 2017, respondent no.3 was appointed as the Advocate General, Bihar after the formation of new ministry, term of which ended on 27.11.2020 and, thereafter, General Elections were held and a new Council of Ministers headed by Chief Minister was sworn in but respondent no.3 was not appointed as the Advocate General by the new regime and no notification was issued by the new government appointing Respondent no. 3 as Advocate General of the State.

4. Petitioner referred to Article 165(1) which mandates that the Advocate General shall be appointed by the Governor of the State and Article 165(3) contemplates that Advocate General shall hold the office of the Advocate General during the pleasure of Governor.

5. Petitioner further refers to Article 164 which defines “the pleasure of the Governor”. It is argued that Article 164(1) contemplates that the ministers shall be appointed by the Governor and the ministers shall hold office during the pleasure of the Governor. It is further contended that the pleasure of the Governor ends with the formation of a new ministry and the Advocate General is to be appointed every time after the formation of a new ministry. It was submitted that tenure of respondent no. 3 ended in November, 2020 when a new ministry was formed in the State of Bihar and accordingly tenure of Advocate General also came to an end.

6. It was lastly argued that in the India’s legal system, there is no constitutional office that is permanent in nature. No one can hold a constitutional office for life. Every constitutional post has fixed tenure. Tenure in the case of Advocate General comes to an end on the date of formation of the new ministry.

7. On the other hand, it is submitted on behalf of respondent that the petition is misconceived and petitioner has misread and misconstrued Article 165 of the Constitution, which deals with appointment of Advocate General by the Governor of the State. It is submitted that on a bare reading of Article 165, it is apparent that Advocate General shall hold office during pleasure of the Governor of the State, who is to act on aid and advice of Council of Ministers. The Article does not postulates that the term of Advocate General is co-terminus with the term of Chief Minister. The submission of petitioner that whenever the Chief Minister relinquishes the office, the office of Advocate General will be deemed to have been vacated ipso facto and a new notification has to be issued is not the correct proposition of law.

8. It was further contended that a Minister appointed by the Governor on the advice of Chief Minister under Article 164 (i) of the Constitution of India though holds office during the pleasure of Governor can continue as Minister for a maximum period of five years as life of State Legislative Assembly is of five years only and thereafter State Legislative Assembly stands dissolved and a fresh election for State Legislature is held in order to constitute new State Assembly, as such provision of Article 164(1)