TMI Blog2002 (10) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court of Orissa and the Leader of the Opposition, if there is any. In a 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. Before 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 Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. That order is under challenge in this appeal. The 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 sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Before appreciating the contention raised by the learned counsel for the parties, we would first refer to the objects and reasons of the Act, which provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The 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 Secretary. In context of the aforesaid functions of the Lokpal and the required qualification of a person who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (2) 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. (3) When the opinion or advice binds the proposer, consultation is mandatory and its infraction renders the action or order illegal. (4) 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 void. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
