2002 (10) TMI 783

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....he 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 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 ju....

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....onsored 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. 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 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 r....

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....ation' 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 positio....

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....ng 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. (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. (5) 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 outline....