K.P. Mohapatra Vs. Sri Ram Chandra Nayak & Ors  Insc 432 (9 October 2002)
B. Shah & D. M. Dharmadhikari. Shah, J.
question involved in this appeal is what is the requirement and what meaning
could be assigned to 'Consultation' as contemplated under Section 3(1) of the Orissa
Lokpal and Lokayuktas Act, 1995 (hereinafter referred to as 'the Act')? Proviso
(a) to Section 3(1) of the Act prescribes that the Government shall appoint Lokpal
after consultation with the Chief Justice of the High Court of Orissa and the
Leader of the Opposition, if there is any.
Public Interest Litigation filed under Articles 226 and 227 of Constitution of
India in Original Jurisdiction Case No.14728 of 1996, by judgment and order
dated 21.9.2001, the High Court of Orissa set aside the appointment of
appellant as Lokpal on the ground that there was no effective consultation with
the Leader of the Opposition.
dealing with the contentions raised, we would first refer to the brief facts of
the present case. Appellant retired Judge of the High Court of Orissa was
appointed as the Lokpal by the Governor of Orissa by issuing Notification dated
26.11.1996. Before that, as provided under Section 3(1) of the Act, the Chief
Minister of Orissa wrote a letter on 8.10.1996 to the Chief Justice of Orissa
High Court and the Leader of the Opposition that the three persons named
therein were under consideration for the Office of the Lokpal and requested
them to convey their considered views on the subject. By letter dated
10.10.1996, the Chief Justice replied that the appellant a retired Judge of Orissa
High Court may be appointed as Lokpal. Thereafter, on 11.11.1996, the Leader of
the Opposition wrote a letter inter alia stating that the long record of previous
Lokpals was one of palpable non-performance and that he construes that act of
'consultation' as envisaged under Section 3(1)(a) of the Act implies making of
relevant suggestions on the issue. It was also stated that he wished that the
person to be appointed as Lokpal must inter alia be a reputed judicial
personality with high integrity, professional maturity and courage of
conviction. According to his knowledge, one other person named therein who was
working as Chairman of State Administrative Tribunal could be one with such
qualities and he may be considered for the august Office. Thereafter, by
Notification dated 26.11.1996, the Government of Orissa appointed the appellant
as the Lokpal with effect from the date he is sworn in as such.
hearing the parties, PIL was allowed and it was held that there was no
effective consultation with the Leader of the Opposition and that the
consultation under Section 3(1) of the Act is not an empty formality but it
should be real, full and effective amongst the Governor, Chief Justice and
Leader of the Opposition. The Court observed that there was no consultation
with the Chief Justice with regard to the name suggested by the Leader of the
Opposition and if the Chief Minister had consulted the Chief Justice, he would
have given his opinion on the same and, therefore, the consultation as
contemplated under Section 3(1) of the Act had not taken its full course.
Therefore, appointment of the appellant as Lokpal was void.
order is under challenge in this appeal.
learned counsel for the appellant submitted that the order passed by the High
Court is, on the face of it, illegal and erroneous. It is his submission that
the suggestion made by the Chief Justice of the High Court would have primacy.
It is also submitted that the consultation with the Leader of the Opposition
would not mean that the Government should concur with the same or should
postpone the appointment of Lokpal and consider the names suggested by the
Leader of the Opposition. He pointed out that in the present case, the Leader
of the Opposition has not made any grievance against appointment of the
appellant or has not stated anything that he is not fit for being appointed to
the said post. Merely because he has suggested other name than the names which
were under consideration by the Government, it cannot be said that the
Government should wait and discuss the name suggested by him.
learned counsel for the State also supported the said contentions and submitted
that there was no dispute that the appellant was having essential qualification
and qualities. The Leader of the Opposition in his letter has nowhere stated
the persons sponsored by the Government were devoid of essential qualities for
being appointed as Lokpal nor it can be stated that Leader of the Opposition
has disagreed with the names proposed by the Government.
none appeared on behalf of the respondent, who was petitioner before the High
Court, we appointed learned senior counsel Mr. Ramamurthi as Amicus Curiae to
assist us. He submitted that the word 'consultation' has to be interpreted in
the context of the post or public office and the object and purpose for which
the provision for consultation is made. It is his submission that under the
Act, Government is required to appoint a sitting or retired Judge of the
Supreme Court or of a High Court as the Lokpal. In this context, the
consultation by the Government with the Chief Justice is a sine qua non. As
against this, consultation with the Leader of the Opposition may be for information
so that if there is something against the proposed name, he can draw the
attention but the law does not require that the Leader of the Opposition can
propose a name for being appointed as Lokpal.
appreciating the contention raised by the learned counsel for the parties, we
would first refer to the objects and reasons of the Act, which provide that it
is an act to make provision for the appointment and functions of Lokpal and Lokayuktas
for the investigation of administrative action taken by or on behalf of the
Government or certain local and public authorities in certain cases and for
matters connected therewith and matters involving acts of injustice, corruption
provision which calls for interpretation is Section 3 (1) & (2) of the Act,
which reads thus:
Appointment of Lokpal and Lokayuktas.(1) For the purpose of conducting
investigations in accordance with the provisions of this Act, the Governor
shall appoint a person to be known as the Lokpal and one or more persons to be
known as the Lokayukta or Lokayuktas:
that (a) the Lokpal shall be appointed after consultation with the Chief
Justice of the High Court of Orissa and the Leader of the Opposition, if there
Lokayukta or Lokayuktas shall be appointed after consultation with the Lokpal.
person shall not be qualified for appointment as (a) Lokpal unless he is or has
been a Judge of the Supreme Court or of a High Court; and (b) A Lokayukta
unless he is qualified to be a Judge of a High Court." Further, Section
4(1) inter alia provides that Lokpal or Lokayukta should not be connected with
any political party. In any case, if he is connected, he is required to sever
the connection on being appointed to the said post. That means, he must be an
independent non-political person. Under Section 7, Lokpal has inter alia to
investigate any action which is taken by or with a general or specific approval
of Chief Minister or a Minister or a Secretary, in a case where a complaint
involving a grievance or an allegation is made in respect of such action or
such action can be or could have been, in the opinion of the Lokpal, the
subject of a grievance or an allegation.
word 'Minister' is defined under Section 2 (i) to mean a member of the Council
of Ministers and includes the Chief Minister, Deputy Chief Minister, a Minister
of State, a Deputy Minister and the Leader of Opposition or a Parliamentary
context of the aforesaid functions of the Lokpal and the required qualification
of a person who is to be appointed to hold such office, the word 'consultation'
used in Section 3 is required to be interpreted. As provided under Section 3, a
person is not qualified to be appointed as Lokpal unless he is or has been a
Judge of the Supreme Court or of a High Court. In the context of the functions
which are to be discharged by the Lokpal, it is apparent that they are of
utmost importance in seeing that unpolluted administration of the State is
maintained and mal-administration as defined under Section 2(h) is exposed so
that appropriate action against such mal- administration and administrator
could be taken. The investigation which Lokpal is required to carry out is that
of quasi-judicial nature which would envisage not only knowledge of law, but
also of the nature and work which is required to be discharged by an
administrator. In this context, the word 'consultation' used in Section 3(1)
Proviso (a) would require that consultation with the Chief Justice of the High
Court of Orissa is must or sine qua non. For such appointment, Chief Justice of
the High Court would be the best person for proposing and suggesting such
person for being appointed as Lokpal. His opinion would be totally independent
and he would be in a position to find out who is most or more suitable for the
this context, primacy is required to be given to the opinion of the Chief
Justice of the High Court. It is true that proviso (a) provides that Leader of
the Opposition, if there is any, is also required to be consulted. Therefore,
if there is no Leader of Opposition, consultation is not required. This would
indicate nature of such consultation and which is to apprise him of the
proposed action but his opinion is not binding to the Government. At the same
time, his views or objections are to be taken into consideration. If something
is adverse against the person proposed by the Government, he would be entitled
to express his views and point it out to the Government. This, however, would
not mean that he could suggest some other name and the Government is required
to consider it. It would, therefore, be open to the Government to override the
opinion given by the Leader of the Opposition with regard to the appointment of
a Lokpal who is statutorily required to be a sitting or retired Judge of the
Supreme Court or of a High Court. Under Section 3(1) of the Act, there is no
question of initiation of proposal by the leader of the Opposition.
Court in Indian Administrative Service (SCS) Association, UP and others v.
Union of India and others [1993 Suppl. (1) SCC 730] considered amplitude of the
word 'consultation' used in Section 3(1) of the All India Services Act, 1951
which inter alia reads thus: - "3.(1) Regulation of recruitment and
conditions of service.(1) The Central Government may, after consultation with
the Governments of the States concerned (including the State of Jammu and
Kashmir), (and by notification in the Official Gazette) make rules for the
regulation of recruitment, and the conditions of service of persons appointed
to an All India Service." The Court considered the phrase 'after
consultation with the Governments of States concerned' and discussed number of
decisions on the word 'consultation' and held thus:
The result of the above discussion leads to the following conclusions:
Consultation is a process which requires meeting of minds between the parties
involved in the process of consultation on the material facts and points
involved to evolve a correct or at least satisfactory solution. There should be
meeting of minds between the proposer and the persons to be consulted on the
subject of consultation. There must be definite facts which constitute the
foundation and source for final decision. The object of the consultation is to
render consultation meaningful to serve the intended purpose. Prior
consultation in that behalf is mandatory.
When the offending action affects fundamental rights or to effectuate built-in
insulation, as fair procedure, consultation is mandatory and non- consultation
renders the action ultra vires or invalid or void.
When the opinion or advice binds the proposer, consultation is mandatory and
its infraction renders the action or order illegal.
When the opinion or advice or view does not bind the person or authority, any
action or decision taken contrary to the advice is not illegal, nor becomes
When the object of the consultation is only to apprise of the proposed action
and when the opinion or advice is not binding on the authorities or person and
is not bound to be accepted, the prior consultation is only directory. The
authority proposing to take action should make known the general scheme or
outlines of the actions proposed to be taken be put to notice of the authority
or the persons to be consulted; have the views or objections, take them into
consideration, and thereafter, the authority or person would be entitled or
has/have authority to pass appropriate orders or take decision thereon. In such
circumstances it amounts to an action 'after consultation'.
hard and fast rule could be laid, no useful purpose would be served by
formulating words or definitions nor would it be appropriate to lay down the
manner in which consultation must take place.
for the Court to determine in each case in the light of its facts and
circumstances whether the action is 'after consultation'; 'was in fact
consulted' or was it a 'sufficient consultation'." In the aforesaid case,
the Court has further observed "the Central Government is not bound to
accept all or every proposal or counter proposal".
the principle enunciated in the aforesaid judgment, Scheme of Section 3(1) of
the Act read with the functions to be discharged by the Lokpal and the nature
of his qualification, it is apparent that the consultation with the Chief
Justice is mandatory and his opinion would have primacy. The nature of the
consultation with the Leader of the Opposition is to apprise him about the
proposal of selecting a person to the post and also to take his views on the
said proposal. However, the opinion rendered by the Leader of the Opposition is
not binding on the State Government and the Leader of the Opposition would have
no power to recommend someone else for the said post.
result, the appeal is allowed and the impugned judgment and order dated
21.9.2001 passed by the High Court of Orissa at Cuttack in O.J.C. No.14728 of
1996 is quashed and set aside. There shall be no order as to costs.