The discretionary power of the Governor in making the appointment of the Advocate General and the distinction between the appointment procedures for the Advocate General and a High Court Judge.

( 1 ) THIS writ petition has been filed in the nature of Public Interest Litigation by two practising Advocates of this court challenging the appointment of Sri virendra Bhatia as Advocate General of the state. The petition has been argued by Sri manendra Nath Rai, petitioner No. 1 in presence of Sri Sushil Kumar Singh, petitioner no. 2, who has stated that he adopt the arguments advanced by Sri Manendra Nath rai.

( 2 ) ON the formation of the present Government, Sri Virendra Bhatia has been appointed as Advocate General of the State on 16-9-2003.

( 3 ) WHILE making a challenge to the aforesaid appointment of Sri Virendra Bhatia, the petitioner, Manendra Nath Rai has drawn attention of the Court to Article 217 of the constitution of India. His submission is that even in the case of appointment to the office of the Advocate General the Governor has to consult or should consult the Chief justice of the State. For elaborating the aforesaid argument, he has placed reliance upon Article 217 (1) of the Constitution of india, which provides consultation with the chief Justice of the State in the matter of appointment of a Judge of the High Court.

( 4 ) THE other point is regarding the qualifications of a person for being appointed as judge of the High Court as given in Clause (2) of Article 217 of the Constitution.

( 5 ) SRI Rai though admitted that Sri virendra Bhatia has been an Advocate for more than ten years period as is required in sub-clause (b) of Article 217 (2) of the Constitution but asserts that possession of this qualification only makes him eligible for being appointed as Advocate General but it does not necessarily mean that he is also suitable for being appointed as such. According to him, mere possession of the eligibility qualification would not be sufficient for the appointment of the Advocate General, but his suitability has also to be adjudged. His further argument is that for testing the aforesaid criteria, the Governor ought to have consulted the Chief Justice of the state before making the appointment, but no such consultation has been done and, therefore, the appointment cannot be said to have been made in accordance with the provisions of the Constitution.

( 6 ) THE next argument, which has been advanced by the petitioner is that by making such an appointment the fundamental right as guaranteed under Articles 14 and 16 of the Constitution are violated. In Para 15 of the writ petition, it has been asserted and arguments have also been advanced that Sri Virendra Bhatia is a committed member of Samajwadi Party and has contested the election on its ticket at Lucknow though unsuccessfully and that he is President of National Forum of Lawyers of samajwadi Party and that Sri Virendra bhatia has also been associated with political parties since beginning, therefore, also he could not have been appointed as Advocate General.

( 7 ) IN response Sri S. A. H. Rizvi, learned chief Standing Counsel has submitted that reference to Article 217 (1) of the Constitution is wholly out of context in the matter of appointment of Advocate General. He has further submitted that no fundamental right of the petitioners has been violated and there is no violation of Articles 14 and 16 of the constitution nor the same are attracted in the circumstances of the case. With respect to the argument that Sri Virendra Bhatia has been associated with a political party since beginning and has contested the election on the ticket of the Samajwadi party, he has submitted that firstly, there is no bar under the Constitution to make a person as Advocate General, if he is associated with some political party; and secondly, the discretion exercised by the Governor cannot be questioned under Article 226 of the Constitution in the matter of appointment of Advocate general.

( 8 ) THE appointment of Advocate General is to be made under Article 165 (1) of the constitution of India, which reads as under :"165. Advocate General for the State : (1) The Govern

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