Advocates:
RACHANA SRIVASTAVAP. N. GUPTA

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1134-1135 OF 2002

State of Uttaranchal

.. Appellant

Versus

Balwant Singh Chaufal & Others

.. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1.

These appeals have been filed by the State of

Uttaranchal (now Uttarakhand) against the orders dated

12.7.2001 and 1.8.2001 passed by the Division Bench of the

High Court of Uttaranchal at Nainital in Civil Miscellaneous

Writ Petition No. 689 (M/B) of 2001.

2.

The appointment of L. P. Nathani was challenged before

the High Court in a Public Interest Litigation on the ground

that he could not hold the august Office of the Advocate

General of Uttarakhand in view of Article 165 read with

Article 217 of the Constitution. According to the respondent,

Mr. Nathani was ineligible to be appointed as the Advocate

General because he had attained the age of 62 years much

before he was appointed as the Advocate General. The High

Court entertained the petition and directed the State

Government to take decision on the issue raised within 15 days

and apprise the same to the High Court.

3.

The State of Uttaranchal preferred special leave

petitions before this Court on 6.8.2001. This Court vide order

dated 9.8.2001 stayed the operation of the impugned judgment

of the High Court. Thereafter on 11.2.2002, this Court

granted leave and directed that the stay already granted shall

continue.

4.

It may be pertinent to mention that, despite the

service of notice, the respondents who had initially filed the

writ petition before the High Court challenging the

appointment of Nathani as the Advocate General did not appear

before this Court. This clearly demonstrates the non-

seriousness and non-commitment of the respondents in filing

the petition.

5.

Before we proceed to examine the controversy involved

in this case, we deem it appropriate to set out Articles 165

and 217 of the Constitution dealing with the post of the

Advocate General and the qualifications for appointment to

this post in the Constitution. Article 165 which deals with

the appointment of the Advocate General for the States is

reproduced as under:

“165. The Advocate-General for the State.-(1)

The Governor of each State shall appoint a

person who is qualified to be appointed a Judge

of a High Court to be Advocate-General for the

State.

(2) It shall be the duty of the Advocate-General

to give advice to the Government of the State

upon such legal matters, and to perform such

other duties of a legal character, as may from

time to time be referred or assigned to him by

the Governor, and to discharge the functions

conferred on him by or under this Constitution

or any other law for the time being in force.

(3) The Advocate-General shall hold office

during the pleasure of the Governor, and shall

receive such remuneration as the Governor may

determine.

6.

Article 217 which deals with the appointment and the

conditions of the office of a Judge of a High Court is set out

as under:

217 - Appointment and conditions of the office

of a Judge of a High Court .- (1) Every Judge of

a High Court shall be appointed by the President

by warrant under his hand and seal after

consultation with the Chief Justice of India,

the Governor of the State, and, in the 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

article 224, and in any other case, until he

attains the age of sixty-two years:

Provided that--

(a)

a Judge may, by writing under his hand

addressed to the President, resign his office;

(b)

a Judge may be removed from his office

by the President in the manner pr