Advocate General Not Obligated To Resign When CM Resigns: Patna High Court Dismisses Plea Seeking Removal Of AG

The Patna High Court has observed that there is no obligation upon the Advocate General of a state to submit his resignation on the resignation of the Chief Minister with Council of Minister or on the expiry of the term/dissolution of the Legislative Assembly. 

The Bench of Chief Justice Sanjay Karol and Justice S. Kumar observed thus while dismissing a Writ plea seeking removal of Bihar's AG Lalit Kishore, being in violation of Article 165(3) of the Constitution of India.

The case in brief

Petitioner Dinesh filed a PIL submitting that in July 2017, Mr. Kishore was appointed as the Advocate General, Bihar after the formation of a new ministry, the term of which ended on November 27, 2020.

The petitioner thereafter submitted that Assembly Elections were held and a new Council of Ministers headed by Chief Minister was sworn in but Mr. Kishore was not appointed as the Advocate General by the new regime and no notification was issued by the new government appointing him as Advocate General of the State.

In the end, the petitioner submitted that the tenure of Mr. Kishore ended in November 2020 when a new ministry was formed in the State of Bihar, and accordingly, the tenure of Advocate General also came to an end.

Therefore, the petitioner sought a declaration that Mr. Kishore is in illegal occupation of the office of the Advocate General, Bihar, and also sought his removal from the office.

Court's observations

Taking into account Article 165 of the Constitution of India, the Court, at the outset, noted that Advocate General has no fixed tenure and he/she holds the office during the pleasure of Governor, who acts on aid and advice of the Council of Ministers, headed by Chief Minister.

"Advocate General shall continue in office till he enjoys the pleasure of the Governor and there is no provision under Constitution which suggests that his appointment is co-terminus with term of Chief Minister or State Government or Legislative Assembly," the Court observed.

Further, stressing that the appointment of Advocate General is made on the doctrine of pleasure, i.e., "pleasure of the Governor", the Court also held thus:

"Advocate General continues to hold the office at the pleasure of Governor, and no limitation or restrictions are placed 'at pleasure' doctrine and he can be removed by the Governor at whose pleasure he holds office, at any time, without notice and without assigning any cause...Advocate General holds his office under the Constitution without being subordinate to the government to discharge the function and duty of his office, he is not controlled by the Governor or by the State government because while giving advice to the State government, upon any legal matters, referred to him, or while performing duties of a legal character, assigned by the Governor or while discharging the functions conferred on him, by or under the Constitution, or any other law, for the time being, in force, he is free to exercise his discretion according to law."

Consequently, the Court dismissed the PIL while holding that there is no fixed tenure of Advocate General and neither any fresh notification is required to be issued on the assumption of office by new Government nor his tenure comes to an end, on such assumption by the new Government.

Case title - Dinesh v. The State of Bihar and others

Case Citation: 2022 LiveLaw (Pat) 5

Click Here To Read/Download Order