1950 (11) TMI 25 - HC - Indian Laws

Issues Involved:
1. Legality of the appointment of the Advocate-General under Article 165(1) of the Constitution.
2. Immunity of the Governor under Article 361(1) of the Constitution.
3. Maintainability of the application for a writ of 'quo warranto'.
4. Applicability of Article 217's age limit to the Advocate-General.
5. Locus standi of the applicant.

Detailed Analysis:

1. Legality of the Appointment of the Advocate-General:
The applicant contended that the non-applicant, having retired as a High Court Judge upon reaching the age of 60, could not be appointed as the Advocate-General under Article 165(1) of the Constitution. The Court held that the validity of such an appointment is not beyond challenge. The Constitution does not prohibit the Court from inquiring into the legality of appointments made under it. The Court emphasized that the Constitution establishes the supremacy of law, not men, and that the legality of any act done in pursuance of the Constitution must be scrutinized by the Courts unless explicitly excluded by the Constitution.

2. Immunity of the Governor under Article 361(1):
The applicant argued that the Governor's immunity under Article 361(1) does not apply in cases of constitutional contravention. The Court clarified that the immunity extends to acts purporting to be done in pursuance of the Constitution, and thus, the Governor is not answerable to the Court for the appointment in question. However, the Court can still examine the legality of the Governor's actions without the Governor being a party to the proceedings.

3. Maintainability of the Application for a Writ of 'Quo Warranto':
The Court discussed the nature of the writ of 'quo warranto', emphasizing that it is a process by which the Court inquires into the legality of a person's claim to a public office. The Court rejected the preliminary objections raised by the Advocate-General, stating that the office of the Advocate-General is of a public nature and substantive character, and thus subject to scrutiny. The Court held that the application is maintainable as the applicant is invoking the Court's power to ensure that public duties are exercised only by those legally authorized to do so.

4. Applicability of Article 217's Age Limit to the Advocate-General:
The Court examined Articles 165 and 217, concluding that the age limit prescribed in Article 217(1) for High Court Judges does not apply to the Advocate-General. Article 165(1) requires the Advocate-General to be qualified to be appointed as a High Court Judge, but the age limit is a provision for the tenure of Judges, not a qualification. The Advocate-General holds office during the pleasure of the Governor as per Article 165(3), without any age limitation. Therefore, the appointment of the non-applicant is not invalidated by his age.

5. Locus Standi of the Applicant:
The Court addressed whether the applicant had the standing to seek a writ of 'quo warranto' without alleging any infringement of his personal rights. The Court interpreted the phrase "for any other purpose" in Article 226(1) broadly, allowing for the issuance of writs for purposes beyond enforcing personal legal rights. The applicant's interest in ensuring that public offices are held by those legally entitled to them was deemed sufficient to invoke the Court's jurisdiction.

Conclusion:
The application for a writ of 'quo warranto' against the non-applicant was rejected. The Court held that the appointment of the non-applicant as Advocate-General was valid despite his age and previous retirement as a High Court Judge. The applicant was ordered to pay the costs of the proceedings. Leave to appeal was granted under Article 132(1) of the Constitution.

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