Kalyan Dutt Sharma, C.J. - (1.) By way of this writ petition under Article 226 of the Constitution Dr. Chandra Bhan Singh, petitioner, has challenged the appointment of Shri Nathu Lal Jain, non-petitioner No. 3, as Advocate General for the State of Rajas-than and prayed for issuance of a writ of quo-warranto against him and for an appropriate, writ, order or direction for quashing the appointment on the ground that it has been made in violation of the provisions of Articles 165 and 319 (d) of the Constitution of India. The State of Rajasthan as well as His Excellency the Governor are also impleaded as non-petitioners Nos. 1 and 2 respectively in this writ petition.
(2.) The relevant facts giving rise to this writ petition may be briefly stated as follows:-- The office of the Advocate General for Rajasthan fell vacant after Dr. S. K. Tiwari had ceased to hold that office. In exercise of the powers conferred on him under Article 165 of the Constitution, His Excellency the Governor of Rajasthan appointed Shri Nathu Lal Jain, non- petitioner No. 3 as Advocate General for the State of Rajasthan, vide order D/- June 16, 1982. In pursuance of the said order Shri Nathu Lal Jain took charge of the office of the Advocate General and is working as such. It was alleged in the writ petition that Shri Nathu Lal Jain had been a member of the Rajasthan Public Service Commission for about five years prior to his appointment as Advocate General for the State of Rajasthan and after having ceased to hold the office of the member of the Rajasthan Public Service Commission, he could not legally be appointed as Advocate General in view of the absolute bar contained in Clause (d) of Article 319 of the Constitution, which reads as follows:- "319. On ceasing to hold office -- (a) to (c) ........... (d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under Government of a State." It was further alleged in the writ-petition that Shri Nathu Lal Jain was not qualified for appointment as Advocate General on account of being not eligible or qualified to be appointed a Judge of a High Court, as required by Clause (1) of Article 165 of the Constitution. According to the petitioner, under the provisions of Clause (1) of Article 217 of the Constitution a person shall hold the office of a Judge of a High Court only, until he attains the age of 62 years. Shri Nathu Lal Jain having crossed the age of 62 years was not qualified to be appointed as a Judge of a High Court and so he could not be appointed as Advocate General for the State of Rajasthan, because under Clause (1) of Article 165 of the Constitution, the Governor could appoint a person as Advocate General, only if he was qualified to be appointed as a Judge of a High Court. The petitioner's grievance, therefore, is that the appointment of Mr. Nathu Lal Jain to the office of the Advocate General for Rajasthan is bad or illegal firstly, because he was debarred under Clause (d) of Article 319 of the Constitution for any other employment either under the Government of India or under the State of Rajasthan, as provided in that Article, and because he was not qualified to be appointed a Judge of a High Court on the date of his appointment as Advocate General for the State of Rajasthan. The writ petition is supported by the affidavit of the petitioner.
(3.) When this writ petition was put up for admission, a notice was issued to the non-petitioners to show-cause why it should not be admitted. In response to show-cause notice, written replies were filed on behalf of the State of Rajasthan and Mr. Nathu Lal Jain, non-petitioners Nos. 1 and 3 respectively. In the written replies the contention of the non-petitioners was that the appointment of Shri Nathu Lal Jain to the office of the Advocate-General for the State of Rajasthan is not illegal, invalid an, violative of Clause (d) of Article 319 and Clause (1) of Article 165 of the Constitution, because the Advocate General is a constitutional functionary exercising the powers conferred on him by Article 165 of the Constitution, and, as such, no relationship of servant and master exists between him and the State. It was further urged in the replies that the Advocate General is in no way in the employment of the State Government and so the bar contained in Clause (d) of Article 319 could not be made applicable to him. It was further pleaded that Shri Nathu Lal Jain, non-petitioner No. 3, was not disqualified to be appointed as Advocate General for the State of Rajasthan on account of his having already attained the age of 62 years.;