BALAKRISHNA AYYAR, J. :- By a notification dated 22-6-1960 and bearing S. R. O. No. A. 4436 of 1960 issued in the Public Department, the Government of Madras appointed Mr. Alagiriswami, to be Government Pleader with effect from 01-7-1960 "on his retirement from the Madras State Higher Judicial Service". In the present petition the validity of this appointment is questioned.

2. Mr. Alagiriswami, the first respondent, was enrolled as an advocate of this Court on 16-3-1936. Some five and the three-quarter years later, that is the say, on 3-12-1941, he was appointed as District Munsif and served in that capacity in different places the 5-4-1947. In that year he was appointed as Private Secretary to the then Chief Minister of Madras, which position he held till 1950. Between 1950 and 1953 he underwent training as Legal Draftsman in New Delhi. On the termination of his training he was appointed as Secretary to the Trade Marks Committee and thereafter as Special Officer for the Revision of the Trade Marks Act.

On his relinquishment of that office he was appointed as Joint Secretary to the Government in the Legal Department and subsequently he was promoted as Secretary in that Department. That post he continued to hold till 1959. In July, 1959 he was appointed Principal Judge of the City Civil Court, Madras. In February, 1960 the then Government Pleader was appointed to be a Judge of this Court and the post of Government Pleader thus became vacant. That post continued to be vacant till 1-7-1960 when in pursuance of the order now challenged, Mr. Alagiriswami assumed the duties of that office.

3. In support of his petition Mr. Ramachandran, filed an affidavit, the main points of which are these :

1. The post of Government Pleader is a Public Office.

2. Appointments to that post have to be made in conformity with the Standing Orders on the subject. According to those orders no person can be appointed as a Government Pleader unless he is either an advocate or has held certain civil judicial or quasi-judicial posts for a period of five years. These posts include that of a Subordinate Judge, the Chief Presidency Magistrate, Madras, a Judge of the City Civil Court, Madras, a Puisne Judge of the Court of Small Causes, Madras, the Administrator General and Official Trustee. Madras. A District and Sessions Judge, who is not a member of the Indian Civil Service, would also be eligible. Mr. Alagiriswami was not qualified for appointment under these Rules.

3. From 1920 onwards the post of Government Pleader has been filled from practising advocates of the Madras Bar and every one of those persons had a considerable volume of work at the Ear, and, because of their qualifications as lawyers, and every one of them barring two exceptions - was in his turn appointed as a Judge of the Court.

4. In 1959 Mr. Alagiriswamis name was sent up for appointment as a High Court Judge, but was rejected on the ground that he lacked judicial experience. It was only thereafter that he was appointed as Principal Judge of the City Civil Court.

4. I now quote from paragraph 12 of the affidavit. "I believe that the present, appointment is mala fide for the reason that it is an encroachment on the rights and privileges of the Bar and a departure from established convention. I apprehend it has been made out of considerations extraneous and personal to further the chances of the first respondent to the High Court Bench and seeking to appoint him as Government Pleader on the basis of an outmoded G. O."

5. On behalf of the Government a Counter was filed in which the following contentions were taken :

1. "the Government Pleadership is not an office at all and much less a public Office." The Government Pleader is only an advocate of the Government, but instead of making an appointment in each case, he is appointed generally for all the purposes of the Government. He is only a recognised agent of the Government for conducting their cases.

2. "There are no duties attached to the Go