Age is a condition for appointment, not a qualification, for judges and Advocate Generals.

I do not think the Petitioner is entitled to the relief in the matter. The question raised by the Petitioner has been considered by the Supreme Court in A. C. Industries Ltd. v. Their Workmen (AIR. 1962 SC. 1100). There, though they were dealing with the question of S.72 I. D. Act, 1947, as stood prior to the amendment Act of 1956, the Court had to consider the question as to whether an Advocate who was appointed as an Industrial Tribunal, was qualified for appointment as the High Court Judge. The Supreme Court said:

"The Constitutional provision bearing on this point is Art.217 which is in so far as it is material is as follows:-

"217(l). Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with Chief Justice of India, the Governor of the State, and, in 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 Art.224, and in any other case, until he attains the age of 62 years.

Provided that

(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. Explanation"

While Art.217(2) prescribes the qualification for appointment as a Judge, Art.217(1) lays down that the judge shall hold office until he attains age of 62 years. The whole of the controversy before us is as to the interrelation between these two clauses. The contention of Mr. Pathak, learned Counsel for the Appellant is that though Art.217 (1) refers in terms, to the termination of the office of judge, in substance, it lays down a qualification for appointment, because the appointment of a person aged over sixty as a judge would clearly be repugnant to Art.217 (1) even though he might satisfy all the requirements of Art.217(2). It is accordingly argued that it is an implied qualification for appointment as a judge under Art.217 that the person should not have attained the age of sixty at the time of the appointment.

"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 60 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 in 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 10 years. We think the to nature 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"."

Justice Venkatarama Iyer who rendered the judgment for the Court also referred to the decision of Nagpur High Court reported in AIR. 1952 Nag. 330 and said:

"(11) More to the point under consideration is Art.165(1) that the "Governor of each State shall appoint a person who is qualified to be appointed as a judge of a High Court to be Advocate General for the State". The question has been discussed whether on the terms of this Article, a person who has attained the age of 60 could be appointed as an Advocate General. If the age of a person is regarded as one of his qualifications, th