TMI Blog2013 (1) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... reason that I would hold that a statute must be considered and understood on its own terms. In so construing the Act, no reason to accord primacy to the views of the Chief Justice in the appointment of an Upa-lokayukta under the Karnataka Lokayukta Act, 1984. The judgment of the High Court, to this extent, is set aside. Merely because a wrong has been committed several times in the past does not mean that it should be allowed to persist, otherwise it will never be corrected. The doctrine of ‘prospective overruling’ has no application since there is no overwhelming reason to save the appointment of the Upa-lokayukta from attack. As already held, in the absence of any consultation with the Chief Justice, the appointment of Justice Chandrashekharaiah as an Upa-lokayukta is void ab initio. However, this will not affect any other appointment already made since no such appointment is under challenge before us. It was also contended that the High Court ought not to have laid down any procedure for the appointment of the Upa-lokayukta. In the view that I have taken, it is not necessary to comment on the procedure proposed by the High Court. Conclusion - The appointment of Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta fell vacant on the resignation of Justice R. Gururajan and the Chief Minister initiated steps for filling up that vacancy. Following that, the Chief Minister on 18.10.2011 addressed separate letters to the Chief Justice of the High Court of Karnataka, Chairman of the Karnataka Legislative Council, Speaker of the Karnataka Legislative Assembly, Leader of the Opposition in the Legislative Council and Leader of the Opposition in the Legislative Assembly requesting them to suggest a panel of eligible persons for appointment as Upa Lokayukta on or before 24.10.2011. 6. The Chief Justice suggested the name of Mr. H. Rangavittalachar (Retd.), the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly suggested the names of Mr. Justice K. Ramanna (Retd.) and Mr. Justice Mohammed Anwar (Retd.). The Chairman of the Karnataka Legislative Council and the Speaker of the Karnataka Legislative Assembly suggested the name of Justice Chandrashekaraiah (Retd.). The Chief Minister then advised the Governor to appoint Justice Chandrashekaraiah as Upa Lokayukta. The Governor, accepting the advice of the Chief Minister, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swanathan, however, has fairly submitted that, as per the Scheme of the Act, especially under Section 3(2)(a) and (b), before making appointment to the post of Lokayukta and Upa Lokayukta, it is obligatory on the part of the Chief Minister to consult the Chief Justice of the State High Court, even though the views of the Chief Justice has no primacy. Learned senior counsel submitted that the Governor has to act on the advice of the Chief Minister for filling up the post of Lokayukta and Upa Lokayukta. 11. Shri P.V. Shetty, learned senior counsel appearing for Justice Chandrashekaraiah (retd.) submitted that the primacy in terms of Section 3 of the Act lies with the Chief Minister and not with the Chief Justice. In support of his contention, reference was made to the various judgments of this Court, which we will discuss in the latter part of the judgment. Learned senior counsel submitted that the judgment delivered by the High Court holding that the views of the Chief Justice has primacy relates to cases pertaining to appointment of the Judges of the Supreme Court and High Courts, appointment of the President of State Consumer Forum, Central Administrative Tribunal and so on and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers. Considerable reliance was placed on the judgment of this Court in Justice K.P. Mohapatra v. Sri Ram Chandra Nayak and Ors. (2002) 8 SCC 1, wherein this Court has taken the view that the opinion of the Chief Justice has got primacy which is binding on the State. Learned senior counsel submitted that the conduct and functions to be discharged by Lokayukta or Upa Lokayukta are apparent, utmost importance has to be given in seeing that unpolluted administration of the State is maintained and maladministration is exposed. Learned senior counsel submitted that the functions of the Karnataka Lokayukta are identical to that of Lokpal of Orissa and that the principle laid down in that judgment would also apply while interpreting Sections 3(2)(a) and (b) of the Act. 14. Learned senior counsel submitted that the primacy has to be given to the views expressed by the Chief Justice, not because the persons appointed are discharging judicial or quasi-judicial functions but the source from which the persons are advised for appointment consists of former judges of the Supreme Court and Chief Justices of High Courts and judges of the High Courts in the matter of appointment of Upa Lokayukta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues. Secondly, it will be possible for him to deal with the matter without the glare of publicity which often vitiates the atmosphere and affects the judgment of the general public. Thirdly, it would enable him to avoid internal pressures which often help to shield the delinquent. What we have said about the Prime Minister applies mutatis mutandis to Chief Minister. Cases of corruption: 23. Public opinion has been agitated for a long time over the prevalence of corruption in the administration and it is likely that cases coming up before the independent authorities mentioned above might involve allegations or actual evidence of corrupt motive and favourtism. We think that this institution should deal with such cases as well, but where the cases are such as might involve criminal charge or misconduct cognizable by a Court, the case should be brought to the notice of the Prime Minister or the Chief Minister, as the case may be. The latter would then set the machinery of law in motion after following appropriate procedures and observing necessary formalities. The present system of Vigilance Commissions wherever operative will then become redundant and would have to be abolish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that his powers, functions and procedures may be prescribed mutatis mutandis with those which we have laid down for the Lokpal. His status, position, emoluments, etc. should, however, be analogous to those of a Chief Justice of a High Court and he should be entitled to have free access to the Secretary to the Government concerned or to the Head of the Department with whom he will mostly have to deal to secure justice for a deserving citizen. Where he is dissatisfied with the action taken by the department concerned, he should be in a position to seek a quick corrective action from the Minister or the Secretary concerned, failing which he should be able to draw the personal attention of the Prime Minister or the Chief Minster as the case may be. It does not seem necessary for us to spell out here in more detail the functions and powers of the Lokayukta and the procedures to be followed by him. Constitutional amendment-whether necessary? 37. We have carefully considered whether the institution of Lokpal will require any Constitutional amendment and whether it is possible for the office of the Lokpal to be set up by Central Legislation so as to cover both the Central and St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in administrative machinery. One of the election promises in the election manifesto of the Janata Party was the setting up of the Institution of the Lokayukta. The bill provides for the appointment of a Lokayukta and one or more Upalokayuktas to investigate and report on allegations or grievances relating to the conduct of public servants. The public servants who are covered by the Act include :- 1) Chief Minister; (2) all other Ministers and Members of the State Legislature; (3) all officers of the State Government; (4) Chairman, Vice Chairman of local authorities, Statutory Bodies or Corporations established by or under any law of the State Legislature, including Co-operative Societies; (5) Persons in the service of Local Authorities, Corporations owned or controlled by the State Government, a company in which not less than fifty-one per cent of the shares are held by the State Government, Societies registered under the Societies Registration Act, Co-operative Societies and Universities established by or under any law of the Legislature. Where, after investigation into the complaint, the Lokayukta considers that the allegation against a public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (2), the Lokayukta or an Upa-lokayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the State Government. (3) Where two or more Upa-lokayuktas are appointed under this Act, the Lokayukta may, by general or special order, assign to each of them matters which may be investigated by them under this Act: Provided that no investigation made by an Upa-lokayukta under this Act, and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order. (4) Notwithstanding anything contained in sub-sections (1) to (3), when an Upa-lokayukta is unable to discharge his functions owing to absence, illness or any other cause, his function may be discharged by the other Upa-lokayukta, if any, and if there is no other Upa- lokayukta by the Lokayukta. 20. Few matters are not subjected to the investigation of Lokayukta or Upa Lokayukta which is provided in Section 8 of the Act, which is also extracted hereunder for easy reference: 8. Matters not subject to investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kta or an Upa-lokayukta proposes, after making such preliminary inquiry as he deemed fit, to conduct any investigation under this Act, he.- (a) shall forward a copy of the complaint to the public servant and the Competent Authority concerned; (b) shall afford to such public servant an opportunity to offer his comments on such complaint; (c) may make such order as to the safe custody of documents relevant to the investigation, as he deems fit. (4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held either in public or in camera, as the Lokayukta or the Upa-lokayukta, as the case may be, considers appropriate in the circumstances of the case. (5) The Lokayukta or the Upa-lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or an allegation, if in his opinion.- (a) the complaint is frivolous or vexatious or is not made in good faith; (b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or (c) other remedies are available to the complainant and in the circumstances of the case it would be more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for false evidence), for proceedings before the Lokayukta or Upa Lokayukta, while exercising its powers conferred under sub-section (2) of Section 11, and only for that limited extent is considered a judicial proceeding. 24. Section 12 deals with the reports of Lokayukta which essentially deals with the following aspects: i) The Lokayukta or Upa Lokayukta can sent a report with certain recommendations and findings as envisaged in sub section (1) and (3) of Section 12. ii) Under sub section (2) of Section 12, the competent authority is required to intimate or cause to intimate the Lokayukta or the Upa Lokayukta on the action taken on the report as provided under sub section (1) of Section 12, within 1 month. iii) Failure to intimate the action taken on the report submitted under section (1) has not been dealt with specifically, however if in the opinion of Lokayukta / Upa Lokayukta satisfactory action is not taken by the competent authority under Section 12(2), he is at liberty to send a Special report to the governor as provided for under sub section (5) of Section 12. iv) Findings and recommendations to be given by the Lokayukta or Upalokayukta under sub sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the fact of such acceptance or the deemed acceptance shall immediately be intimated by Registered post by the Governor, the State Government or the Chief Minister if any of them is the competent authority and the State Government in other cases then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or of the deemed acceptance of the declaration, (i) if the Chief Minister or a Minister resign his office of the Chief Minister, or Minister, as the case may be. (ii) If a public servant falling under items (e) and (f), but not falling under items (d) and (g) of clause (12) of section 2, be deemed to have vacated his office: and (iii) If a public servant falling under items (d) and (g) of clause (12) of section 2, be deemed to have been placed under suspension by an order of the appointing authority. Provided that if the public servant is a member of an All India Service as defined in section 2 of the All India Services Act, 1951 (Central Act 61 to 1951) the State Government shall take action to keep him under suspension in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service. e) Grant of honours and awards. 27. Further if the complainant has or had any remedy by way of appeal, revision, review or other proceedings before any tribunal, court officer or other authority and has not availed of the same, the Lokayukta and Upa Lokayukta shall not conduct any investigation under the Act, in other words, they have to act within the four corners of the Act. 28. The Act has also been enacted to make provision for making enquiries by the Lokayukta and Upa Lokayukta into the administrative action relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf of the Government of Karnataka or certain public authorities in the State of Karnataka, including any omission or commission in connection with or arising out of such action etc. 29. Lokayukta or Upa Lokayukta under the Act are established to investigate and report on allegations or grievances relating to the conduct of public servants which includes the Chief Minister; all other Minister and members of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules) for conducting investigation, for the purpose of levy of anti dumping duty in terms of Section 9-A of the Customs Act, 1962, is functioning as an administrative or quasi judicial authority. The Court after examining the scheme of the Tariff Act read with 1995 Rules and the nature of functions to be discharged by the Designated Authority took the view that the authority exercising quasi-judicial functions is bound to act judicially. Court noticed that the Designated Authority determines the rights and obligations of the interested parties by applying objective standards based on the material/information/evidence presented by the exporters, foreign producers and other interested parties by applying the procedure and principles laid down in the 1995 Rules. 33. Provisions of Sections 9, 10 and 11 clearly indicate that Lokayukta and Upa Lokayukta are discharging quasi-judicial functions while conducting the investigation under the Act. Sub-section (2) of Section 11 of the Act also states that for the purpose any such investigation, including the preliminary inquiry Lokayukta and Upa Lokayukta shall have all the powers of a Civil Court while trying a suit under the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act, the Governor shall appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-lokayukta or Upa-lokayuktas. (2)(a) A person to be appointed as the Lokayukta shall be a person who has held the office of a Judge of the Supreme Court or that of the Chief Justice of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the Opposition in the Karnataka Legislative Council and the Leader of the Opposition in the Karnataka Legislative Assembly. (b) A person to be appointed as an Upa-lokayukta shall be a person who has held the office of the Judge of a High Court and shall be appointed on the advice tendered by the Chief Minister in consultation with the Chief Justice of the High Court of Karnataka, the Chairman, Karnataka Legislative Council, the Speaker, Karnataka Legislative Assembly, the Leader of the opposition in the Karnataka Legislative Council and the Leader of the opposition in the Karnataka Legislative Assembly. (3) A person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister in consultation with those five dignitaries. Legislations in few other States.- 38. Legislatures in various States have laid down different methods of appointment and eligibility criterias for filling up the post of Lokayukta and Upa-Lokayuktas, a comparison of which would help us to understand the intention of the legislature and the method of appointment envisaged. 39. ANDHRA PRADESH LOKAYUKTA ACT, 1983 Section 3 Appointment of Lokayukta and Upa-Lokayukta: (1) For the purpose of conducting investigation in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-Lokayukta or Upa-Lokayuktas: Provided that,- (a) the person to be appointed as the Lokayukta shall be a Judge or a retired Chief Justice of a High Court; (b) the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court concerned; (c) the Upa-Lokayukta shall be appointed from among the District Judges of Grade I, out of a panel of five names forwarded by the Chief Justice of the High Court of Andhra Pradesh. (2) In the And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person appointed as the Lokayukta or Upa-Lokayukta shall before entering upon his office, make and subscribe before the Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule. (3) The Upa-Lokayuktas shall be subject to the administrative control of the Lokayukta and, in particular, for the purpose of convenient disposal of investigations under this Act, the Lokayukta may issue such general or special direction, as he may consider necessary to the Upa-Lokayukta Provided that nothing in this sub-section shall be construed to authorize the Lokayukta to question any finding, conclusion or recommendation of an Upa Lokayukta. 41. THE BIHAR LOKAYUKTA ACT, 1973: 3. Appointment of Lokayukta.- (1) For the purpose of conduction investigations in accordance with the provisions of this Act the Governor shall by warrant under his hand and shall appoint a person to be known as the Lokayukta of Bihar; Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the Patna High Court and the Opposition in the State Legislative Assembly or if there be no such leader a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the President, appoint a person to be known as the Lokayukta and one or more persons to be known as Upalokayukta; Provided that- (a) the Lokayukta shall be appointed after consultation with the Chief Justice of the High Court of Delhi and the Leader of the Opposition in the Legislative Assembly and if there be no such leader, a person selected in this behalf by the Members of the Opposition in that House in such manner as the Speaker may direct; (b) the Upalokayukta shall be appointed in consultation with the Lokayukta. 2) A person shall not be qualified for appointment as- (a) the Lokayukta, unless he is or has been Chief Justice of any High Court in India, or a Judge of a High Court for seven years; (b) an Upalokayukta, unless he is or has been a Secretary to the Government or a District Judge in Delhi for seven years or has held the post of a Joint Secretary to the Government of India. 3. Every person appointed as Lokayukta or Upalokayukta shall, before entering upon his office, make and subscribe before the Lieutenant Governor or some person appointed in that behalf by him, an oath or affirmation in the form set out for the purpose in the First Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of the Opposition in the State Legislative Assembly in such manner as the Speaker may direct. (2) The person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by the Governor, an oath or affirmation in the form set out for the purposes in the First Schedule. 46. HARYANA LOKAYUKTA ACT, 2002: Section 3 Appointment of Lokayukta- (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor, shall, by warrant, under his hand and seal, appoint a person to be known as the Lokayukta: Provided that the Lokayukta shall be appointed on the advice of the Chief Minister who shall consult the Speaker of Haryana Legislative Assembly, Leader of Opposition and the Chief Justice of India in case of appointment of a person who is or has been a Judge of the Supreme Court or Chief Justice of the High Court, and Chief Justice of the Punjab and Haryana High Court in case of appointment of a person who is or has been a Judge of a High Court. Provided further that the result of consultation shall have persuasive value but not binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or former, but from a panel of five names of District Judges of Grade I forwarded by the Chief Justice. Further in the States of Assam, Delhi, Gujarat, etc., the Chief Ministers have no role as such. However, in the States of Chattisgarh, Haryana etc., the Governor appoints on the advice of the Chief Minister. In the State of Chhattisgarh the Act says, the Pramukh Lokayukta shall be a person who has been a judge of a High Court or has held a judicial office higher than that of a High Court Judge. Lokayukta shall be a person who has functioned at the level of a Secretary, both Government of India or the Chief Secretary to any State Government. The Chief Justice of the High Court is a consultee, in the Lokayukta Act of Assam, Bihar, Delhi, Gujarat, Jharkhand and so on. However, in the Kerala Lokayukta Act, the Chief Justice is not a consultee at all. In few States, Upa-lokayuktas are appointed from a panel of District Judges, not from the High Court Judges sitting or former. Legislatures of the various States, in their wisdom, have, therefore, adopted different sources, eligibility criteria, methods of appointment etc. in the matter of appointment of Lokayukta and Upa-Lokayuktas. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, it was also stated that consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other others and discuss and examine the relative merits of their views . 51. In Samsher Singh v. State of Punjab and another (1974) 2 SCC 831, Justice Krishna Iyer, in his concurring judgment, highlighted the independence of Judiciary and held it is a cardinal principle of the Constitution and has been relied on to justify the deviation, is guarded by the relevant article making consultation with the Chief Justice of India obligatory . In Union of India v. Sankalchand Himatlal Sheth and another (1977) 4 SCC 193 this Court high-lighted the rationale behind consulting the Chief Justice of India on matters pertaining to judiciary, in the light of Article 222 of the Constitution of India. This Court held that Article 222(1) requires the President to consult the Chief Justice of India on the premises that in a matter which concerns the judiciary vitally, no decision ought to be taken by the executive without obtaining the views of the Chief Justice of India who, by training and experience, is in the best position to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and others v. Kali Dass Batish and another (2006) 1 SCC 779 this Court has interpreted the expression after consultation with the Chief Justice of India as appearing in Section 6(7) of the Administrative Tribunal Act, 1985 and held that the judicial powers are being exercised by the Tribunal and hence the views of the Chief Justice of India be given primacy in the matter of appointment in the Central Administrative Tribunal. Similar is the situation with regard to the State Administrative Tribunals as well, where the views of the Chief Justice of the High Court has primacy, since the Tribunal is exercising judicial powers and performing judicial functions. APPOINTMENT TO THE NATIONAL AND STATE CONSUMER REDRESSAL COMMISIONS: 54. This Court in Ashish Handa, Advocate v. Hon ble the Chief Justice of High Court of Punjab and Haryana and others (1996) 3 SCC 145, held in the matter of appointment of President of the State Commissions and the National Commissions under the Consumer Protection Act, 1986, the consultation with the Chief Justice of the High Court and Chief Justice of India is in the same manner, as indicated by the Supreme Court in Supreme Court Advocates-on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice is mandatory and his opinion will have primacy. Above Judgment has been rendered in the context of the appointment of Orissa Lokpal under Section 3 of the Orissa Lokpal and Lokayuktas Act. The proviso to Section 3(1) of the Act says that the Lokpal shall be appointed on the advice of the Chief Justice of the High Court of Orissa and the Leader of the Opposition, if there is any. Consultation with the Chief Justice assumes importance in view of the proviso. The Leader of the Opposition need be consulted, if there is one. In the absence of the Leader of the Opposition, only the Chief Justice remains as the sole consultee. In that context and in view of the specific statutory provision, it has been held that the consultation with the Chief Justice assumes importance and his views has primacy. 58. In that case, the Chief Justice approved the candidature of Justice K.P. Mahapatra, but the Leader of the Opposition later recommended another person, but the State Government appointed the former but the High Court interfered with that appointment. Reversing the judgment of the High Court, this Court held that the opinion rendered by the Leader of the Opposition is not binding on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Legislature itself. 62. Section 3(2)(a) and (b) when read literally and contextually admits of not doubt that the Governor of the State can appoint Lokayukta or Upa Lokayukta only on the advice tendered by the Chief Minister and that the Chief Justice of the High Court is only one of the consultees and his views have no primacy. The Governor, as per the statute, can appoint only on the advice tendered by the Chief Minister and not on the opinion expressed by the Chief Justice or any of the consultees. Consultation 63. The Chief Minister is legally obliged to consult the Chief Justice of the High Court and other four consultees, which is a mandatory requirement. The consultation must be meaningful and effective and mere eliciting the views or calling for recommendations would not suffice. Consultees can suggest various names from the source stipulated in the statute and those names have to be discussed either in a meeting to be convened by the Chief Minister of the State for that purpose or by way of circulation. The Chief Minister, if proposes to suggest or advise any name from the source ear- marked in the statute that must also be made available to the consultees so that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In my view that this is the scheme of Section 3(2)(a) and (b) of the Act and however, much we strain, nothing spells out from the language used in Section 3(2)(a) and (b) to hold that primacy be attached to the opinion expressed by the Chief Justice of the High Court of Karnataka. I am, therefore, of the view that the various directions given by the High Court holding that the views of the Chief Justice has got primacy, is beyond the scope of the Act and the High Court has indulged in a legislative exercise which is impermissible in law. I, therefore, set aside all the directions issued by the High Court, since they are beyond the scope of the Act. 66. The Chief Minister, in my view, has however committed an error in not consulting the Chief Justice of the High Court in the matter of appointment of Justice Chandrashekaraiah as Upa Lokayukta. Records indicate that there was no meaningful and effective consultation or discussion of the names suggested among the consultees before advising the Governor for appointment to the post of Upa Lokayukta. The appointment of Justice Chandrashekaraiah as Upa Lokayukta, therefore, is in violation of Section 3(2)(b) of the Act since the Chief J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsultation with the Chief Justice specifically on the appointment of Justice Chandrashekaraiah as an Upa- lokayukta. His appointment, therefore, is void ab initio. 5. Several related questions require consideration, including whether the Upa-lokayukta is a quasi-judicial authority or is only (without meaning any disrespect) an investigator; who should initiate the process of appointment of an Upa-lokayukta; what is meant by consultation in the context of Section 3(2)(b) of the Karnataka Lokayukta Act, 1984 (for short the Act); whether consultation is at all mandatory under Section 3(2)(b) of the Act; how is the process of consultation required to be carried out; whether the view of the Chief Justice of the Karnataka High Court regarding the suitability of a person for appointment as Upa-lokayukta has primacy over the views of others involved in the consultation and finally, whether the Karnataka High Court was right in directing a particular procedure to be followed for the appointment of an Upa-lokayukta. 6. The interpretation of Section 3 of the Karnataka Lokayukta Act, 1984 arises for consideration. This Section reads as follows: Section 3: Appointment of Lokayukta a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the case law on the subject, the High Court was of the opinion that the Upa-Lokayukta performs functions that are in the nature of judicial, quasi-judicial and investigative. The High Court expressed the view that if the functions of an Upa-Lokayukta were purely investigative, the legislature would not have insisted on a person who has held the office of a judge of a High Court as the qualification for appointment and consultation with the Chief Justice as mandatory. 9. In coming to this conclusion, the High Court drew attention to N. Gundappa v. State of Karnataka, 1989 (3) KarLJ 425 wherein it was held that the Upa-lokayukta .while conducting investigation into a complaint and making a report on the basis of such investigation, exercises quasi judicial power. It determines the complaint made against a public servant involving a 'grievance' or an 'allegation' and the report becomes the basis for taking action against the public servant by the Competent Authority. The Division Bench of the Karnataka High Court upheld this conclusion by a very cryptic order in State of Karnataka v. N. Gundappa, ILR 1990 Kar 4188. 10. The High Court also drew attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of service of an Upa-lokayukta are dealt with in Section 5 of the Act. This Section, read with Section 6 of the Act (which deals with the removal of an Upa- lokayukta), provides security of tenure to the Upa-lokayukta. He has a fixed term of five years and cannot be removed except by an order of the Governor passed after an address by each House of the State Legislature supported by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of that House present and voting . The removal of an Upa-lokayukta can only be on the ground of proved misbehavior or incapacity and the procedure for investigation and proof of misbehavior or incapacity is as provided in the Judges (Inquiry) Act, 1968 which applies mutatis mutandis to an Upa-lokayukta. 15. On ceasing to hold office, an Upa-lokayukta is ineligible for further employment to any office of profit under the State or any other authority, corporation, company, society or university referred to in the Act. The salary of an Upa-lokayukta is equal to that of a judge of the High Court and the conditions of service cannot be varied to his disadvantage after his appointment. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent; receiving evidence on affidavits and other related powers. Proceedings before the Upa- lokayukta are deemed to be judicial proceedings within the meaning of Section 193 of the Indian Penal Code. In this context, Section 17-A of the Act is important and this Section enables the Upa-lokayukta to exercise the same powers of contempt of itself as a High Court and for this purpose, the provisions of the Contempt of Courts Act, 1971 shall have effect mutatis mutandis. 21. The Upa-lokayukta is protected by virtue of Section 15 of the Act in respect of any suit, prosecution or other legal proceedings in respect of anything that is done in good faith while acting or purporting to act in the discharge of his official duties under the Act. 22. The Upa-lokayukta is statutorily obliged under Section 12(1) of the Act to submit a report in writing if, after investigation of any grievance, he is satisfied that the complainant has suffered some injustice or undue hardship. In his report to the Competent Authority, as defined in Section 2(4) of the Act, the Upa-lokayukta shall recommend that the injustice or hardship be remedied or redressed in a particular manner and within a specified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torily prescribed, clearly bring out that not only does he perform quasi-judicial functions, as contrasted with purely administrative or executive functions, but that the Upa- lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa-lokayukta can only be described as a sui generis quasi-judicial authority. (iii) Decisions on the subject: 28. Learned counsel for the State referred to The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, [1950] SCR 459 to highlight the difference between a court and a tribunal. It is not necessary to go into this issue because the question is not whether the Upa-lokayukta is a court or a tribunal the question is whether he is a quasi-judicial authority or an administrative authority. To this extent, the decision of the Constitution Bench does not add to an understanding of the issue under consideration. 29. However, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esently concerned with the second line of cases. The learned Judge held: What are the principles to be deduced from the two lines of cases I have referred to? The principles, as I apprehend them, are: (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. 33. As mentioned above, an Upa-lokayukta does function as an adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The intention of the legislature is clear. The name has to emanate from the Chief Justice alone. Therefore, the law laid down by the Constitution Bench of the Apex Court squarely applies to the appointment of Lokayukta and Upa- Lokayukta. Therefore, we have no hesitation in holding that under Section 3 of the Act, it is only the Chief Justice who shall suggest the name of the Judge for being appointed as Lokayukta or Upa- Lokayukta. Other constitutional functionaries have no such right to suggest the name. It is only one name and not panel of names as there is no indication to that effect in the provision. (ii) Submissions and decisions on the subject: 37. Learned counsel first made a reference to Sarwan Singh Lamba v. Union of India, (1995) 4 SCC 546 in which the Chief Minister of the State initiated the process for the appointment of the Vice-Chairman and members of the State Administrative Tribunal. It was contended that their appointments were, inter alia, contrary to the procedure laid down in the decision of this Court in S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. The Constitution Bench noted that the State Government had initiated the process of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in State of Haryana v. National Consumer Awareness Group, (2005) 5 SCC 284. 40. In N. Kannadasan v. Ajoy Khose and Others, (2009) 7 SCC 1 the appointment of the President of the State Commission under Section 16 of the Consumer Protection Act once again came up for consideration. After referring to Ashish Handa, Ashok Tanwar and National Consumer Awareness Group it was held in paragraph 153 of the Report that the process of selection must be initiated by the High Court. It was observed that the Chief Justice should recommend only one name and not a panel, for if the choice of selection from a panel is left to the Executive, it would erode the independence of the Judiciary. 41. One significant fact may be noticed from a reading of the cases cited above, namely, that for the appointment of the Vice Chairman or Member of the State Administrative Tribunal or the President of the State Consumer Disputes Redressal Commission, only the Chief Justice of India or the Chief Justice of the High Court is required to be consulted, and not several persons. It is this context that it was held that the Chief Justice of the High Court must initiate the process of appointment. Sarwan Singh L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, it hardly matters who initiates the process of appointment of the Upa-Lokayukta. Ordinarily, it must be the Chief Minister since he has to tender advice to the Governor and, in a sense, the appointment is his primary responsibility. But this does not preclude any of the other constitutional authorities who are required to be consulted from bringing it to the notice of the Chief Minister that the post of the Upa-Lokayukta needs to be filled up and that the appointment process ought to commence nothing more than that. None of them ought to suggest a name since constitutional courtesy would demand that only the Chief Minister should initiate the appointment process. There is no reason to hold that merely because the Upa-Lokayukta is a sui generis quasi-judicial authority, only the Chief Justice must initiate the process of appointment. It must not be forgotten that the selection of the Upa-lokayukta is a consultative process involving several constitutional authorities and in the context of the Act, no constitutional authority is subordinate to the other. 46. In the present case, the process of appointment of the Upa-lokayukta commenced with a letter written by the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject matter of the consultation. 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 atleast satisfactory solutions. There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation. A consultation may be between an uninformed person and an expert or between two experts. In either case, the final decision is with the consultor, but he will not be generally ignoring the advice except for good reasons. The consultation is not complete or effective before the parties thereto making their respective points of view known to the other or others and discuss and examine the relative merits of their views. In order for two minds to be able to confer and produce a mutual impact, it is essential that each must have for its consideration fully and identical facts, which can at once constitute both the source and foundation of the final decision. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. If there are more than o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, AIR 1994 SC 268. 52. In Ashok Tanwar the Constitution Bench considered the dictum laid down in Ashish Handa and categorically distinguished the process of the appointment of a judge of a superior court under Article 217 of the Constitution from that of the President of the State Commission. It was observed in paragraph 16 of the Report as follows:- The process of consultation envisaged under Section 16 of the Act can neither be equated to the constitutional requirement of consultation under Article 217 of the Constitution in relation to appointment of a Judge of a High Court nor can it be placed on the same pedestal. Consultation by the Chief Justice of the High Court with two senior most Judges in selecting a suitable candidate for appointment as a Judge is for the purpose of selecting the best person to the high office of a Judge of the High Court as a constitutional functionary. Consultation with the Chief Justice of the High Court in terms of Section 16 of the Act is a statutory requirement. 53. Further, while referring to Aruna Roy v. Union of India, (2002) 7 SCC 368 it was observed that: the words and expressions used in the Constitution, . have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sultation in the appointment process as postulated by Section 3(2)(b) of the Act is with the Chief Justice in his individual capacity and not consultation in a collegial capacity. (iii) The process of consultation: 59. How is this consultation to take place? There are absolutely no consultation guidelines laid down in the Act. But the High Court seems to endorse the view that consultation ought take place across a table or through correspondence. It was also suggested by learned counsel for the State that it would be more appropriate that all constitutional authorities have a meeting where the suitability of the person recommended for appointment may be discussed. 60. I do not think it necessary to circumscribe the manner of consultation. The Chief Minister may consult the other constitutional authorities collectively or in groups or even individually this hardly matters as long as there is meaningful and effective consultation. Similarly, I do not think it necessary to restrict the mode of consultation. It may be in a meeting or through correspondence. Today, with available technology, consultation may even be through a video link. The form of consultation or the ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter plainly, there is no gainsaying the fact that there never ever was any consultation on the name of Shri Justice Chandrashekaraiah for appointment to the position of Upa Lokayukta between you and myself. I reiterate that in this particular case, not even the name was shared by you (the Chief Minister) with me (the Chief Justice), leave alone eliciting my views on the suitability of the person for holding the post of Upa Lokayukta. 62. The contents of this letter are not denied by the State and are quite obviously admitted. Significantly, the Chief Minister did not reply to this letter. Clearly, the Chief Justice was kept in the dark about the name of a candidate and there was no full and complete disclosure of facts. Ergo, the Chief Minister did not recommend the name of Justice Chandrashekharaiah in consultation with the Chief Justice. This was contrary to the mandatory requirement of Section 3(2)(b) of the Act and so, it must be held that the appointment of Justice Chandrashekharaiah was void ab initio. 63. In this context, reference was made to Indian Administrative Service (S.C.S.) Association U.P. and Others v. Union of India and Others, 1993 Supp. (1) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sociation, with reference to the above provision, that prior consultation was not mandatory as long as the relevant rules were made after consultation . The present case is not concerned with the issue of prior consultation . All that is of concern in the present case is whether the Chief Minister acted in consultation with the constitutional authorities referred to Section 3(3)(b) of the Act and the answer to this is in the negative. 67. Consultation for the purposes of Section 3(2)(b) of the Act does not and cannot postulate concurrence or consent. This is quite obvious given the large number of constitutional authorities involved in the consultation process. There is always a possibility of an absence of agreement on any one single person being recommended for appointment as an Upa-lokayukta, as has actually happened in the present case. In such a situation, it is ultimately the decision of the Chief Minister what advice to tender to the Governor, since he alone has to take the final call. 68. Can the Chief Minister advice the Governor to appoint a person not recommended by any of the constitutional authorities? I see no reason why he cannot, as long as he consults t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 16 of the Consumer Protection Act, although I think it would naturally follow. 72. In any event, in Kannadasan it was held that for the appointment of the President of the State Commission, the view of the Chief Justice was final and for all intents and purposes decisive, and except for very cogent reasons, his recommendation must be accepted. It was held in paragraph 156 of the Report that: For the appointment as President of the State Commission, the Chief Justice of the High Court shall have the primacy and thus the term consultation even for the said purpose shall mean concurrence only. 73. As noted above, the Chief Justice of India or the Chief Justice of the High Court is the only constitutional authority required to be consulted in the appointment of a Vice Chairman or Member of the State Administrative Tribunal or the President of the State Consumer Disputes Redressal Commission. In that context, it is quite understandable that the recommendation of the Chief Justice must be accepted, unless there are strong and cogent reasons for not doing so. The reasons would, naturally, have to be disclosed to the Chief Justice as a part of the process of consult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consultation process is binding or not is a different matter altogether. This Court went a bit further in Justice Mohapatra and held that though the Leader of the Opposition is entitled to express his views but he cannot suggest any other name for consideration. 76. I am afraid, however uncomfortable one may feel about it, Section 3 of the Orissa Lokpal and Lokayuktas Act, 1999 as I read it, simply does not prohibit the Leader of the Opposition from suggesting some other name for consideration for appointment as a Lokpal. This restriction is not warranted by the words of the statute and would, even otherwise, give that Section far too restricted a meaning. As concluded in IAS Association The object of the consultation is to render consultation meaningful to serve the intended purpose. Giving consultation a constricted meaning in Section 3 of the Orissa Lokpal and Lokayuktas Act, 1999 would defeat this. It was observed in Maharashtra State Financial Corporation v. Jaycee Drugs and Pharmaceuticals, (1991) 2 SCC 637: It is a settled rule of interpretation of statutes that if the language and words used are plain and unambiguous, full effect must be given to them as they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lain the omission of the Chief Minister in the consultation process in the Orissa Lokpal and Lokayuktas Act, 1995? It is for this reason that I would hold that a statute must be considered and understood on its own terms. In so construing the Act, I see no reason to accord primacy to the views of the Chief Justice in the appointment of an Upa-lokayukta under the Karnataka Lokayukta Act, 1984. The judgment of the High Court, to this extent, is set aside. Other contentions: 80. It was submitted that the practice followed for the appointment of the Upa-lokayukta in the present case is the same or similar to the practice followed in the past and, therefore, this Court should not interfere with the appointment already made. If at all interference is called for, the doctrine of prospective overruling should be applied. 81. I am not inclined to accept either contention. Merely because a wrong has been committed several times in the past does not mean that it should be allowed to persist, otherwise it will never be corrected. The doctrine of prospective overruling has no application since there is no overwhelming reason to save the appointment of the Upa-lokayukta from attack. ..... 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