ORDER :- Sri Alagiriswami, the first respondent, to this petition, was appointed an Additional Judge of this High Court on 8th August 1966. On the 11th August 1966, this petition seeking the issue of a quo warranto calling upon the first respondent to show under what authority he holds the office in question was filed. The petitioner is a member of the High Court Bar and has been a practitioner before this Court for the last 34 years. He claims that as a member of the Bar, he is vitally interested in the purity of the administration of justice and for reasons that would be apparent from what follows, he finds it to be his duty to move this Court in this matter.

2. According to the petitioner, Sri Alagiriswami does not possess the qualification prescribed by Article 217 (2) (b) of the Constitution. Secondly, it is contended that the appointment has been made virtually in the teeth of a Bench decision of this Court in which on an earlier occasion the propriety of the appointment of Sri Alagiriswami as Government Pleader was brought into question and it was held by this Court that that appointment was an act of favouritism intended to sphere the first respondent to a High Court Judgeship through the back door. Though this Court felt powerless to interfere with the first respondent's appointment as Government Pleader, the decision of that Bench established that in making that appointment, the Government was moved by extraneous consideration, principally that of conferring upon the first respondent a qualification solely for the purpose of enabling him to become a Judge of the High Court. It is said accordingly that the appointment of the first respondent as a Judge is the fulfilment of the scheme engineered by those in authority when the first respondent was some years ago appointed as Government Pleader, and on this ground his appointment is attacked as affected by mala fides and is fraud on power.

3. These are two grounds broadly speaking that have been amplified in the lengthy affidavit accompanying the petition. I do not think it necessary to set out the contents of the affidavit in any great detail; but I shall refer to such portions thereof as may be required.

4. Under Article 217 (2) (b), a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and has for at least ten years been an advocate of a High Court or of two or more such Courts, in succession. It is the contention of Mr. G. Vasantha Pai, learned counsel for the petitioner, that at the best it can be said that the first respondent has been an advocate of the High Court since the date of his appointment as Government Pleader on 1st July 1960, and not earlier. Before commenting upon this particular contention, the following facts are necessary to be set out. These facts appear in the affidavit itself. The first respondent was enrolled as an advocate for the High Court in 1936, but he chose to practise only in the mofussil Courts, principally at Madurai, at that time. In 1941, he was appointed as District Munsif, undoubtedly a judicial office, and served in that capacity between 1941 and 1947. It is said that he was functioning intermittently, but no precise dates are given which would indicate the length of that service. Simultaneously with this appointment to the Judicial service, he had necessarily to cease practice as an advocate. Between 1947 and 1959, he occupied various posts. They were not posts which could be regarded as judicial posts. For about a year, thereafter, he acted as Principal Judge of the City Civil Court, Madras. As stated already, on 1-7-1960, he was appointed as Government Pleader. The contention of Mr. Vasantha Pai is that the qualification prescribed by the above article as an advocate of a High Court requires the qualification of a "practising" advocate of a High Court, and not merely a person who has been enrolled as an advocate of the High Court, who for a variety of reasons practises elsewhere

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