Holding

Consultation with the Chief Justice is mandatory and his opinion has primacy; consultation with the Leader of the Opposition is only to apprise and consider his views, and is not binding, making the appointment valid.

Summary

The Supreme Court examined the meaning of "consultation" under Section 3(1) of the Orissa Lokpal and Lokayuktas Act, 1995, which requires the Governor to appoint a Lokpal after consulting the Chief Justice of the Orissa High Court and, if any, the Leader of the Opposition. The Chief Minister had proposed three names; the Chief Justice favoured the retired High Court judge (the appellant) while the Leader of the Opposition suggested another candidate. The Government appointed the retired judge, and the Orissa High Court set aside the appointment on the ground that there was no effective consultation with the Leader of the Opposition. On appeal, the Supreme Court held that consultation with the Chief Justice is mandatory and his opinion has primacy, whereas consultation with the Leader of the Opposition is merely to apprise and consider his views, not binding. Consequently, the appointment was valid and the High Court's order was set aside. The appeal was allowed.

Issues considered

The meaning and legal effect of "consultation" under Section 3(1) proviso (a) of the Orissa Lokpal and Lokayuktas Act, 1995.
Whether the opinion of the Leader of the Opposition is binding on the Government for the appointment of Lokpal.
Whether the appointment of the retired High Court judge as Lokpal is void for lack of effective consultation with the Leader of the Opposition.

Subjects

consultationLokpalOrissa Lokpal and Lokayuktas ActappointmentChief JusticeLeader of Oppositionpublic interest litigationstatutory interpretationadministrative law

Judgment

A JUSTICE K.P. MOHAPATRA
v.
SRI RAM CHANDRA NAY AK AND ORS.

OCTOBER 9, 2002

B [M.B. SHAH AND D.M. DHARMADHIKARI, JJ.]

Orissa Lokpal and Lokayuktas Act, 1995-Section 3(1)-Appointment
of Lokpal.-Chief Minister proposing three names for office of Lokpal to Chief
Justice of High Court and Leader of Opposition-Chief Justice agreeing for
C appointment ofretired High Court Judge while Leader ofOpposition proposing
another name-Government appointing retired High Court Judge as Lokpal- ·
High Court setting aside the appointment as there was no effective consultation •
with the Leader of Opposition-On appeal held. High Court erred in selling
aside the appointment since the consultation with Chief Justice is mandatory
D and his opinion would have primacy-Nature of consultation with the Leader
of Opposition is only to apprise him about the proposal of selecting a person
to the post and take his view and the opinion rendered by him is not binding
on the Government.

Words and Phrases:
E
'Consultation '-Meaning of in the context of Section 3 of the Orissa
Lokpal and Lokayuktas Act, 1995.

For appointment of Lok pal, Chief Minister of Orissa wrote a letter
to Chief Justice of Orissa High Court and Leader of Opposition that the
F three persons named therein were under consideration for the Office of
Lokpal and requested them to convey their views. Chief Justice replied
that among them, the appellant-retired Judge of Orissa High Court may
be appointed as Lokpal. Leader of Opposition opined that another person
named therein who was working as Chairman of State Administrative
G Tribunal could be considered for the office. Thereafter, Government of
Orissa appointed the appellant as Lokpal. Respondent filed Public Interest
Litigation. High Court set aside the appointment of appellant as Loli.pa!
on the ground that there was no effective consultation with the Leader of
the Opposition. Hence the present appeal.

H 166
JUSTICE K.P. MOHAPATRA v. R.C. NAY AK 167

Appellant contended that the suggestion made by Chief Justice of A
High Court would have primacy; the consultation with the Leader of
Opposition would not mean that Government should concur with the same
or should postpone the appointment of Lokpal and consider the names
suggested by the Leader of Opposition; the Leader of Opposition has not
made any grievance against appointment of appellant nor has stated that B
he is unfit for the appointment and merely because he has suggested
another name, it cannot be said that Government should wait ana discuss
the name suggested by him.

State contended that the appellant was having essential qualification
and qualities; and that the Leader of Opposition did not state that the C
persons sponsored by the Government were devoid of essential qualities
or disagreed with the names proposed by the Government.

As none appearetJ for the respondent, Amicus Curiae was appointed
who submitted that the word 'consultation' has to be interpreted in the
con.text of the post or public office and the object and purpose for which D
the provision for consultation is made and the Government is required to
appoint a sitting or retired Judge of Supreme Court or High Court as
Lokpal under the Act, thus the consultation by Government with Chief
Justice is a sine qua 11011. As against this, consultation with the Leader of
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 E
that the Leader of Opposition can propose a name for being appointed as
Lokpal.

Allowing the appeal, the Court

HELD: 1.1. The word 'consultation' used in Section 3(1) proviso (a) F
of the Orissa Lokpal and Lokayuktas Act, 1995 requires that consultation
with the Chief Justice of High Court is must or sine qua non. For such
appointment, Chief Justice of 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 G
out who is most or more suitable for the said office. Jn this context,
primacy is required to be given to the opinion of Chief Justice of the High
Court. Proviso (a) provides that Leader of Opposition, if there is any, is
also required to be consulted. Therefore, if there is no Leader of
Opposition, consultation is not required which would indicate nature of
such consultation and which is to apprise him of the proposed action but H
168 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A his opinion is not binding on 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 Government is
required to ~onsider it. It would, therefore, be open to the Government
B to override the opinion given hy the Leader of Opposition with regard to
the appointment of Lokpal who is statutorily required to be a sitting or
retired Judge of Supreme Court or High Court. Under Section 3(1) of the
Act, there is no question of initiation of proposal by the Leader of
Opposition. 1172-D-H; 173-AI
c 1.2. Applying the principle enunciated in the Indian Administrative
Sen1ice (SCS) Association's case, scheme of Section 3(1) of the Orissa Lokpal
and Lokayuktas Act, 1995 read with the functions to be discharged by
the Lokpal and the nature of his qualification, it is apparent that in terms
of section 3(1) the consultation with Chief Justice is mandatory and his
D opinion would have primacy. The nature of the consultation with the
Leader of 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 Opposition is not binding on the
State Government and the Leader of Opposition would have no power to
E recommend someone else for the said post. 1174-E-GI

Indian Administrative Service (.')CS) Association, UP and Ors. v. Union
of India and Ors., 119931 Suppl. I SCC 730, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6643 of
F 2002.

From the Judgment and Order dated 21.9.2001 of the Kolkata High
Court in O.J.C. No. 14278 of 1996.

K. Ramamoorthy, (AC) and Raju Ramachandran, Jana Kalyan Das,
G G.D. Gupta, Mrs. Shobha Nagarjuna and Radha Shyam, for the appearing
parties.

The Judgment of the Court was delivered by

SHAH, J. Leave granted.

H Short question involved in this appeal is what is the reqµirement and
JUSTICE K.P. MOHAPATRA v. R.C. NAY AK [SHAH, J,j 169

what meaning could be assigned to 'Consultation' as contemplated under A
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.

hi a Public Interest Litigation filed under Articles 226 and 227 of B
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 Lok pal on the ground that there Was no effective
consultation with the Leader of the Opposition.

Before dealing with the contentions raised, we wouid first refer to the C
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( l) of
the Act, the Chief Minister of Orissa wrote a Jetter on 8. l 0.1996 to the Chief
Justice of Orissa High Court and the Leader of the Opposition that the three D
persons named thetein Were under consideration for the Office of the Lok pal
and requested them to convey their considered views on the subject. By letter
dated I0.10.1996, the Chief Justice replied that the appellant-a retired Judge
of Orissa High Court may be appointed as Lokpal. Thereafter, on 11.1 I .1996,
the Leader of the Opposition wrote a letter inter alia stating that the Jong
record of previous Lokpals was one of palpable non-performance and that he E
construes that act of 'consultatiml' 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 p
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.
G
After 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 H
170 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A 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.
B
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 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
C 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
D name than the names which were under consideration by the Government, it
caruiot be said that the Government should wait and discuss the name suggested
by him.

The learned counsel for the State also supported the said contentions
and submitted that there was no dispute that the appellant was having essential
E 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.
F As 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
G that under the Act, Government is required to appoint a sitting or retired
Judge of the Supreme Court or ofa 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
H
JUSTICE K.P. MOHAPATRA v. R.C. NAY AK [SHAH, J.] 171

Opposition can propose a name for being appointed as Lokpal. A
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
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 B
certain cases and for matters connected therewith and matters involving acts
of injustice, corruption or favouritism.

Relevant provision which calls for interpretation is Section 3 (I) & (2)
of the Act, which reads thus:
c
"3. Appointment of Lokpal and Lokayuktas.~(l) 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: D
Provided 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 is any;
E
(b) the Lokayukta or Lokayuktas shall be appointed after consultation
with the Lokpal.

(2) A 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 F
(b) A Lokayukta unle~s he is qualified to be a Judge of a High
Court."

Further, Section 4( I) inter alia provides that Lokpal or Lokayukta should
not be connected with any political party. In any case, if he is connected, he G
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
H
172 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A 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, it Deputy Minister and the Leader of Opposition or a Parliamentary
B Secretary.

In 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
C 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 mat-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
D 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.
E 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 said office. In 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
F 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
G 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
H Judge of the Supreme Court or of a High Court. Under Section 3(1) of the

I I
JUSTICE K.P. MOHAl'ATRA v R.C. NAY AK [SHAH • .I) 173

Act, there is no question of initiation of proposal by the leader of the A
Opposition.

This Court in Indian Administrative Sen,ice (SCS) Association, UP and
Ors v. Union ofIndia.and Ors., [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: - B
"3.(1) Regulation of recruitment and conditions of service.())
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 C
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:
D
"26. The result of the above discussion leads to the following
conclusions:

(I) 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 E
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 p
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 G
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 H
174 SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A · 1-:;ib ·;not. illegal, nor becomes void.
When the object of the consultation is only to apprise of the
(5)
.,, " '· .i~i- yropo.~ed,ac,ti.o~ a,nd.,when the opinion or advice is not binding

'·, )\~'l"lil L-.·or,th.e;a\l\~orities _oriR-~r~on and is not bound to be accepted, the
. : 1 , +m; r,ri~r ,cq~sul!~tio~ 1i,s_ ~~Jy ?ir~ctory .. Tl1e authority proposing. to
.B take action should make knowq the, £(:q~ral scheme or outlines
of the actions proposed to be taken be put to notice of the authority
_,-:fl Sa ' or the persons.to be corisulted; have the views or objections, take
:.1:" "·" ~"i" · them·. into, consideration,"and. thereafter; the authority'. or person
.._,iii:n. ,,)J' .· wouldibe entitled or'has/have.authority to·pass appropriate orders
.. •! '.:t <~i:. :or; take decisio1Hheredn: JJn,s'uch' circumstances it amounts to an
<n'""''I fo J:action fafter cimsultation:., :, ::1 .-•nl1•,,~ ·· i:; ' ..
(6) No hard and fast rul~ ci~ld°'bi'1aia,'~~ ~~eful p~rjJos~ would be
1

:i::l , : , 1w :;rr5erv,e\f, ,byj f9rll},1;1lat\?g, ,w.on;I.~, o;r. ,cjefini.t,i9!1s: n_OLWOi.!ld
it be
,,,,, ,,; r10 ,, 1 j!ppr~priate,,t_o 1.a~AO.J:YIJ !h~ 1111rn11e~.• ir ,w~!sn.-c_o.nsµl~"tipn m,l!.st
· take place. It is for the Cour:t to determine ,i(l each case in the
light of its facts and circumstan~e; whether the acti~/is ;aft~r
~_111 ·,, ,,, ·o"i ·c-consultatioh'; .:.was·.. iin faot,.fonslilted' or:.was:; if'a ..'sufficient
consultation'."

z,;ilim lhHhe,iaforesaidic;1se, the.iCourt has: further: observed·-· "the: Central
:E r.Goveh:nnent is not bound>.to.accepnall'or.every pmposal:or.counter proposal".
l ,f''j_:1 :·~
1
!L- it, t·_,'JTi'/,.. +' ')1in1.,. J1 .' .t' 1·L _".,·•··;bi::· ,:J,..,.;-J :Ji·l;

1,,,j 11 , ~pply.i11g_ .~he)pri!JS\ple ~.n9.f<l?ia\ed iJlc~he <1fo_,re$aid..ju,dgment, Scheme
.,o.f S,~ct,\g~}:(J,). of,..th.e. ;J.~!J~<ip -~\th,,th,e}\ll)~tjpps_t9 IJ~Ai~c\Jarged by the
,L.okpaU1~f!~ th~ _n,ature.pf h.i,s.qualificatio.n,; ;i_t ;is: appar~nt that th.e consultation
.\.'l'.i\\1 th.~ Chi~P~§~ie~,is. ip<1n\ta,t9~y·~.n_d his 9r.iniqn .»"0111~ !h.ave primacy. The
.F "nature, of,;the,c~n,sµltat,i<;W,,"Yith !,he.Leader 9f the;OP,p95ition is to apprise him
.,abouLthe proposal of selecting a person to t,he post and also to;take his views
'~n· ;h~ '~aici"pro~~s~l. 'ti~~~~e;, the opini~n' rerid~;ed: tth_~. Leader of the I?;
Opposition is not binding on the State Government and the Leader of the
"6P'i>'oslt1on 1 «-ouiC! iia've no'ph«l~r 'to' tecohiilien<f soril~bne' erte f~r:the said
::pdStHJllJ":n·r.J .-,· .J1/:;:11~«q ""'..:·; o~ .fl(J1r--i; 1 ·~!1i ni- !:l'.':! ~11··u!'.i·,;, _
~G 1{.1 ?'·)'l\ 11 \)\~\·• 11r·.!Jt~ -:.- h ~i:'.11..11~ 1 noi11~;h_1 ... ftr):.i·' (;r~ ~;fl' :1(,~·ern..si(!

·· In the result, the appeal is allowed and the· impu~lled·judgment and
_ord.er .dated 21 _.9 .200 [. pa,ssed by the. Migb ,Court of. Odss11 ..at Cuttack in
{I IJQ,/!1JlU ~f;~: .1') -;i.;1:1•,~ '·11 ~tJ:l!.· '~'~;\·· ' 1 ,·· ''./•1l·i·/ ~,.I 11)!· :o f.,'

12:~S· -~N4~2¥,,~fJ,9% l~ic9JW1:,~.hr,~1?n~1~?t,3isi1,~. . Ih~rnc~~f,l,I be no order
as· to costs.
'"'.t}1,·J~:1J:q, :..-1iJ tJ 1i··J 11.nr -'::·1nb l ... 1./ ·1r1 :;-:,·lb£ ·1· 1 ·1'.;i d";;, ·. :..1! ii'd' -~: ' \

~H :N·)~;·J~..f.i ,.,1~ :t 1·1r.1J:'if·..1 _J''.l.·i1;J ·:(·1)i:;JL i.r:. 1tt·1!·,;· ·1·1r; .·1Y 1 ,~ppeal allowed.

I I