STATE OF GUJARAT & ANR. v. HONBLE MR. JUSTICE R. A. MEHTA (RETD) & ORS

Citation: [2013] 1 S.C.R. 1

Court: Supreme Court of India

Bench: B.S. CHAUHAN, F.M. IBRAHIM KALIFULLA

Case summary

STATE OF GUJARAT & ANR. v. HONBLE MR. JUSTICE R. A. MEHTA (RETD) & ORS.pdf

Judgment text

[2013] 1 S. C. R. 1 STATE OF GUJARAT & ANR. v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. (Civil Appeal Nos. 8814-8815 of 2012) JANUARY 2, 2013 [DR. B. S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ. ] Gujarat Lokayukta Act, 1986: s. 3 - Appointment of Lokayukta - 'Consultation' - Connotation of - Primacy of opinion of Chief Justice of State - Held: Section 3 must be construed in the light of meaning given by courts to the word 'consultation' so as to give effect to the provisions of the statute to make it operative and 0 workable - Statutory construction of provisions of the Act itself mandates primacy of opinion of the Chief Justice - In a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence - Interpretation of statutes - Purposive construction. s.

3 -Appointment of Lokayukta - Process of consultation - Chief Justice of State recommending the name of a retired Judge of High Court to Governor and Chief Minister - Leader of opposition in the House intimating that he had been consulted by Governor and he had agreed to the appointment - Held: Process of consultation stood complete as 3 out of 4 statutory authorities had approved the name of the respondent and Chief Justice replied to Chief Minister regarding his objections with respect to appointment of respondent as Lokayukta. s. 3 - Appointment of Lokayukta - Held: Chief Justice recommending only one name, instead of a panel of names, is in consonance with the law laid down by Supreme Court, and there is no cogent reason not to give effect to the said recommendation. s. 3 - Delay in appointment of Lokayukta - Held: 8 Statutory provisions make it mandatory on the part of the State to ensure that the office of Lokayukta is filled up without any delay.

Constitution of India, 1950: Arts.

163 and 166 - Manner in which Governor acts - Explained - Held: Where Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him, must only be upon the aid and 0 advice of the Council of Ministers - Therefore, appointment of Lokayukta can be made by the Governor, as Head of the State, only with aid and advice of Council of Ministers, and not independently as a Statutory Authority Administrative Law: Bias - Appointment of Lokayukta - Chief Minister raising objections to recommendation of name of respondent by Chief Justice - Held: An apprehension of bias against a person, does not render such person, ineligible/ disqualified, or unsuitable for the purpose of being appointed to a particular post, or at least for the purpose of which, the writ of quo warranto is maintainable - Objections raised by State Government, are not cogent enough to ignore the primacy of opinion of Chief Justice in this regard - Views of Chief Minister may not resonate with those of the public at large and, thus, such apprehension is misplaced - The reasons discussed by Chief Justice appear to be rational and based on facts - The issue appears to have been dealt with objectively - There is no scope ofjudicial review so far as the MEHTA (RETD) & ORS..

process of decision making is concerned - Judicial review - Constitution of India, 1950 - Art. 226. Judgments: Judgment of High Court - Use of harsh language against authorities - Held: Judges must not use strong and carping language, rather they must act with sobriety, moderation and restraint - In the instant case, the Judge ought to have maintained a calm disposition and should not have used harsh language against a Constitutional authority, i. e. the Chief Minister - Judicial restraint. SUPREME COURT RULES, 1966: 0. 7, r. 2 - Reference to larger bench - Factors to be taken into account - Explained. WORDS AND PHRASES: Words 'by and under' - Connotation of. The appointment of respondent no. 1 as Lokayukta was challenged by the State Government in a writ petition before the High Court. There being difference of opinion between the two Judges of the High Court comprising the Bench, the matter was referred to the third Judge.

The writ petition was ultimately dismissed as per majority opinion. In the instant appeal filed by the State Government, it was contended for the appellants that the Governor was bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister; that the consultation by the Governor with the Attorney General of India being alien to the Gujarat Lokayukta Act, 1986, runs contrary to the statutory provisions of the said Act; that the Chief Justice ought to have recommended a panel of names for consideration by the other consultees, i. e.

, the Chief Minister and Leader of Opposition, and that he could not recommend only one name, as the same would cause the entire process to fall within the ambit of concurrence, rather than tllat of consultation; that the Chief Justice ought to have taken into consideration, the objections raised by the appellants, qua the recommendation made by the Chief Justice with respect to the appointment of respondent no. 1; and that the third Judge made unwarranted and uncalled for remarks in carping language in connection with the Chief Minister which tantamounted to resounding strictures, and the same required to be expunged. Dismissing the appeals, the Court HELD: 1. 1. These appeals raise legal issues of great public importance, such as, what is the meaning of the term 'consultation' contained in S. 3 of the Gujarat Lokayukta Act, 1986 (the Act), and also whether the opinion of the Chief Justice has primacy with respect to the appointment of the Lokayukta.

However, a two- Judges bench in the case of Suraz Trust India has entertained the questions raised while doubting the correctness of the larger bench decisions and the same is pending consideration before a three-Judges bench. [para 5] [26-G; 27-B-C] Suraz Trust India v. Union of India & Anr. (2011) 4 SCALE 252 - referred to. 1. 2. It is, evident that before making a reference to a larger Bench, the Court must reach a conclusion regarding the correctness of the judgment delivered by it previously, and adjudge the effect of any error therein, upon the public, what inconvenience, hardship or mischief it would cause, and what the exact nature of the infirmity or error that warrants a review of such earlier MEHTA (RETD) & ORS. judgments. In the instant case, there is no such compelling circumstance that may warrant a review, and thus, taking into consideration the facts of the case, it cannot be said that the matter requires a reference to a larger Bench.

[para 7) [28-F-H] 8 The Keshav Mills Co. Ltd. , Pet/ad v. The Commissioner of Income-tax, Bombay North, Ahmedabad 1965 SCR 908 = AIR 1965 SC 1636 - relied on. 2. 1. In Gujarat Revenue Tribunal Bar Association's case*, this Court has held that, the object of consultation is to render its process meaningful, so that it may serve its intended purpose. The meaning of consultation varies from case to case, depending upon its fact-situation and the context of the statute, as well as the object it seeks to achieve. In a situation where one of the consultees has o primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence. The court must examine the fact-situation in a given case to determine whether the process of consultation, as required under the particular situation did in fact, stand complete. [para 9 and 16) [31-C; 36-A-C] *State of Gujarat & Anr. v.

Gujarat Revenue Tribunal Bar Association & Anr. , JT 2012 (10) SC 422; UOI v. Sankalchand Himatlal Sheth & Anr. 1978 (1) SCR 423 = AIR 1977 SC 2328; State of Kera/a v. Smt. A. Lakshmikutty & Ors. 1987 (1) SCR 136 =AIR 1987 SC 331; High Court of Judicature for Rajasthan v. P. P Singh & Anr. , 2003 (1) SCR 593 = AIR 2003 SC 1029; UO/ & Ors. v. Kali Dass Batish & Anr. , 2006 (1) SCR 261 = AIR 2006 SC 789; Andhra Bank v. Andhra Bank Officers &Anr. , AIR 2008 SC 2936; and Union of India v. R. Gandhi, President, Madras Bar Association 2010 (6) SCR 857 = (2010) 11 SCC 1; Chandramou/eshwar Prasad v. The Patna High Court & Ors. , 1970 (2) SCR 666 =AIR 1970 SC 370; Centre for PIL & Anr. v. Union of India & Anr. , 2011 (4) SCR 445 =AIR 2011 SC 1267; Justice K. P. Mahapatra v. Sri Ram Chandra Nayak & Ors. , AIR 2002 SC 3578; Ram Chandra Nayak v. State of Orissa AIR 2002 Ori 25; Indian Administrative Service (S. C. S. J Association, U. P. & Ors. v. Union of India & Ors. , 1992 (2) Suppl.

SCR 389 = (1993) Supp. 1 SCC 730 - referred to 2. 2. The statutory construction of the provisions of the Gujarat Lokayukta Act, 1986 itself mandates the primacy of the opinion of the Chief Justice for the simple reason that S. 3 provides for the consultation with the Chief Justice. The purpose of giving primacy of opinion to the Chief Justice is for the reason that he enjoys an independent Constitutional status, and also because the person eligible to be appointed as Lokayukta is from among the retired Judges of the High Court and the Chief Justice is, therefore, the best person to judge th. iir suitability for the post. Besides, s. 6 provides for the removal of Lokayukta, and lays down the procedure for such removal. The same can be done only on proven misconduct in an inquiry conducted by the Chief Justice/ his nominee with respect to specific charges.

Section 8(3) further provides for recusal of the Lokayukta in a matter where a public functionary has raised the objection of bias, and whether such apprehension of bias actually exists or not, shall be determined in accordance with the opinion of the Chief Justice. [para 56) [61-A-E] N. Kannadasan v. Ajoy Khose & Ors. 2009 (7) SCR 668 = (2009) 7 SCC 1; Ashish Handa, Advocate v. Hon'ble the Chief Justice of High Court of Punjab & Haryana &Ors. , 1996 (3) SCR 474 =AIR 1996 SC 1308; and Ashok Tanwar & Anr. v. State of H. P. & Ors. , 2004 (6) Suppl. SCR 1065 =AIR 2005 SC 614; Supreme Court Advocateson-Record Association & Anr. v. Union of India, 1993 (2) Suppl. SCR 659 =AIR 1994 SC 268 - referred to. 2. 3. The doctrine of purposive construction may be MEHTA (RETD) & ORS.

taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute unworkable. In the process of statutory construction, the court must construe the Act before it, bearing in mind the legal maxim ut res magis va/eat quam pereat- which means - it is better for a thing to have effect than for it to be made void, i. e. , a statute must be construed in such a manner, so as to make it workable. The court must give effect to the purpose and object of the Act for the reason that legislature is presumed to have enacted a reasonable statute. [para 66 and 67] [65- B-C-F-G; 66-E] M. Pentiah & Ors. v. Mudda/a Veeramallappa & Ors. 1961 SCR 295 = AIR 1961 SC 1107; S. P. Jain v. Krishna Mohan Gupta & Ors. , 1987 (1) SCR 411 =AIR 1987 SC 222; Reserve Bank of India v.

Peerless General Finance and Investment Co. Ltd. & Ors. , 1987 (2) SCR 1 =AIR 1987 SC 1023; Tinsukhf3 Electric Supply Co. Ltd. v. State of Assam & Ors. , 1989 (2) SCR 544 =AIR 1990 SC 123; UCO Bank & Anr. v. Rajinder Lal Capoor 2008 (5) SCR 775 = (2008) 5 SCC 257; and Grid Corporation of Orissa Limited & Ors. v. Eastern Metals and Ferro Alloys & Ors. , 2010 (10) SCR 779 = (2011) 11 SCC 334- referred to. Nokes v. Doncaster Amalgamated Collieries Ltd. , (1940) 3 All E. R. 549; Whitney v. Inland Revenue Commissioner, 1926 AC 37 - referred to 2. 4. It is evident from the Preamble of the Act, 1986 that the Lokayukta has two duties, firstly, to protect .. honest public functionaries from false complaints and allegations, and secondly, to investigate charges of corruption filed against public functionaries.

The office of the Lokayukta is very significant for the people of the State, as it provides for a mechanism through which, the people of the State can get their grievances heard and redressed against maladministration. Thus, the Lokayukta Act may be termed as a pro-people Act. If a political party in power succeeds in its attempt to appoint a pliant Lokayukta, the same would be disastrous and would render the Act otiose. A pliant Lokayukta, therefore, would render the Act completely meaningless/ ineffective, as he would no doubt reject complaints u/s 7 of the Act, at the instance of the government, taking the prima facie view that there is no substance in the complaint, and further, he may also make a suggestion u/s 20 of the said Act, to exclude a public functionary, from the purview of the Act, which may include the Chief Minister himself. Thus, s.

3 of the Act must be construed in light of the meaning given by the courts to the word 0 'consultation', so as to give effect to the provisions of the statute to make it operative and workable. [para 8, 61 and 69) [29-B; 61-C-D-E; 67-A-C] Vineet Narain & Ors. v. Union of India & Anr. , 1997 (6) Suppl. SCR 595 = AIR 1998 SC 889; State of Madhya Pradesh & Ors. v. Shri Ram Singh 2000 (1) SCR 579 =AIR 2000 SC 870; State of Maharashtra thr. CBI, Anti Coffuption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar JT 2012 (10) SC 446; and Dr. Subramanian Swamy v. Dr. Manmohan Singh & Anr. 2012 (3) SCR 52 =AIR 2012 SC 1185; re: Special Courts Bill, 1978, AIR 1979 SC 478 - referred to. 2. 5. The Gujarat Lokayukta Act, 1986 stipulates that the institution of Lokayukta must be demonstrably. independent and impartial. Proviso to sub-s. (1) of s. 3 envisages the appointment of the Lokayukta when the Legislative Assembly has been dissolved, or when a Proclamation of Emergency under Art.

356 of the Constitution is in operation, upon consultation with the Chief Justice of the State and the Leader of Opposition. However, such consultation with the Leader of MEHTA (RETD) & ORS. Opposition also stands dispensed with, if the Assembly is dissolved or suspended. Thus, it is evident that the Governor can appoint a Lokayukta, even when there is no Council of Ministers in existence. [para 38] [52-C-D-F] 2. 6. The facts of the instant case make it crystal clear 8 that the process of consultation stood complete as on 2. 8. 2011, as 3 out of 4 statutory authorities had approved the name of the respondent. The Chief Minister had certain objections regarding the appointment of respondent No. 1, as Lokayukta, and his objections were duly considered by the Chief Justice, after which, it was also explained to the Chief Minister that the said objections raised by him, were in fact, completely irrelevant, or rather, not factually correct.

This Court has reached the inescapable conclusion that none of the objections raised by the Chief Minister could render respondent no. 1 ineligible/ disqualified or unsuitable for appointment to the post of Lokayukta. [para 45, 46) [56- D-G; 57-C-D] 2. 7. As t:-i<.? ~hief Justice has primacy of opinion in the matter, the non-acceptance of such recommendations, by the Chief Minister, remains insignificant. Thus, it clearly emerges that in the instant case, the Governor, u/s 3 of the Act, 1986 has acted upon the aid and advice of the Council of Ministers. Section 3 of the Act, 1986, does not envisage unanimity in the consultative process. In such a situation, the appointment of respondent no. 1 cannot be held to be illegal. Thus, there is no scope of judicial review so far as the process of decision making in this case is concerned. [para 46, 57 and 74) [57-E; 61-G; 71-E] 2. 8.

The recommendation of the Chief Justice suggesting only one name, instead of a panel of names, is in consonance with the law laid down by this Court, and there is no cogent reason not to give effect to the said recommendation. If the Chief Justice sends a panel of names, and the Governor selects one from them, then it would obviously become the primacy of the Governor and would not remain the primacy of the Chief Justice, which is the requirement under the law. [para 11 and 74) [33-B; 70-H; 71-A] N. Kannadasan v. Ajoy Khose & Ors. 2009 (7) SCR 668 = (2009) 7 SCC 1; Ashish Handa, Advocate v. Hon'ble the Chief Justice of High Court of Punjab & Haryana & Ors. , 1996 (3) SCR 474 =AIR 1996 SC 1308; and Ashok Tanwar & Anr. v. State of H. P. & Ors. 2004 (6) Suppl. SCR 1065 =AIR 2005 SC 614 - referred to. 2. 9.

The statutory provisions make it mandatory on the part of the State to ensure that the office of the Lokayukta is filled up without any delay, as the Act provides for such filling up, even when the Council of Ministers is not in existence. In the instant case, admittedly, the office of the Lokayukta has been lying vacant for a period of more than 9 years i. e. from 24. 11. 2003 till date. [para 38) (52-F-G] 3. 1. Absence of bias can be defined as the total absence of any pre-conceived notions in the mind of the Authority/Judge, and in the absence of such a situation, it is impossible to expect a fair deal/trial and no one would therefore, see any point in holding/participating in one, as it would serve no purpose. The Judge/Authority must be able to think dispassionately, and sub-merge any private feelings with respect to each aspect of the case. The apprehension of bias must be reasonable, i. e. , which a reasonable person would be likely to entertain. [para 34) [49-D-F] 3. 2.

Bias is one of the limbs of natural justice. The doctrine of bias emerges from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when MEHTA (RETD) & ORS. the interest attributed to an individual is such, so as to tempt him to make a decision in favour of, or to further, his own cause. While considerfng the issue of bias, the Court must bear in mind the impression which the public at large may have, and not that of an individual. (para 34] [49-F; 50-C] S. Parthasarathi v. State of Andhra Pradesh, 1974 (1) SCR 697 = AIR 1973 SC 2701; State of Punjab v: V. K. Khanna & Ors. , 2000 (5) Suppl. SCR 200 = AIR 2001 SC 343; N. K. Bajpai v. Union of India &Anr. , 2012 (2) SCR 433 = (2012) 4 SCC 653; and State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc. 2011SCR540 =AIR 2012 SC 364 - referred to 3. 3.

There are sufficient safeguards in the Statute itself, to take care of the pre-conceived notions in the mind, or the bias of the Lokayukta, and so far as the suitability of the person to be appointed as Lokayukta is concerned, the same is to be examined, taking into consideration the interests of the people at large, and not those of any individual. [para 74] [71-C-D] 3. 4. It is a settled legal proposition that a judgment of this Court is binding, particularly, when the same is that of a co-ordinate bench, or of a larger bench. It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced, has actually been decided. (para 35] [50-F-G] Smt. Somavanti & Ors. v. The State of Punjab & Ors. , 1963 SCR 774 =AIR 1963 SC 151; Ba//abhdas Mathuradas Lakhani & Ors. v.

Municipal Committee, Malkapur, AIR 1970 SC 1002; Ambika Prasad Mishra v. State of U. P. &Ors. 1980 (3) SCR 1159 = AIR 1980 SC 1762; and Director of Settlements, A. P. & Ors. v. M. R. Apparao & Anr. , 2002 (2) SCR 661 = AIR 2002 SC 1598; Bidi Supply Co. v. Union of India & Ors. 1956 SCR 267 = AIR 1956 SC 479 - referred to 4. 1. Under the scheme of our Constitution, the 8 Governor is synonymous with the State Government, and can take an independent decision upon his/her own discretion only when he/she acts as a statutory authority under a particular Act, or under the exception(s), provided in the Constitution itself.

Where the Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him, must only be upon the aid and advice of the Council of Ministers, for the reason that the Governor, being the custodian of all executive and other powers under various provisions of the Constitution, is required to exercise his formal Constitutional powers, only upon, and in accordance with, the aid and advice of his Council of Ministers. He is, therefore, bound to act under the Rules of Business framed under Art. 166 (3) of the Constitution. The expression, 'Business of t~e Government of India' In· clause (3) of Art. 77, and the expression, 'Business of the Government of the State' in clause (3) of Art. 166, include all executive business. In the of Rules of Executive Business, the topic involving the appointment of a Lokayukta, must be brought before the Council of Ministers.

[para 21, 22, 25 and 74] [40-F-H; 41-A-E; 44-H; 45-A; 70-0-E] Samsher Singh v. State of Punjab & Anr. , 1975 (1) SCR 814 =AIR 1974 SC 2192; Brundaban Nayak v. Election Commission of India & Anr. , 1965 SCR 53 = AIR 1965 SC 1892; Election Commission of India & Anr. v. Dr. Subramanian Swamy & Anr. , 1996 (1) Suppl. SCR 637 = AIR 1996 SC 1810; Pu Myllai Hlychho & Ors. v. State of Mizoram & Ors. , 2005 (1) SCR 279 = AIR 2005 SC 1537; MEHTA (RETD) & ORS. Ram Nagina Singh & Ors. v. S. V. Sohni & Ors. , AIR 1976 Pat 36; Ram Nagina Singh & Ors. v. S. V. Sohni & Ors. , AIR 1976 Pat 36; Bhuri Nath & Ors. v. State of J & K & Ors. , 1997 (1) SCR 138 = AIR 1997 SC 1711 - referred to 4. 2. While Art.

163 provides that there shall be a 8 Council of Ministers with the Chief Minister as the head, to aid and advise the Governor, in the exercise of his functions, an exception has been carved out with respect to situations wherein, he is, by or under the Constitution, required to perform certain functions by exercising his own discretion. The exceptions carved out in the main clause of Art. 163(1), permit the legislature to entrust certain functions to the Governor to be performed by him, either in his discretion, or in consultation with other authorities, independent of the Council of Ministers. The meaning of the words 'by or under' is well settled. Whenever the Constitution intends to confer discretionary powers upon the Governor, or to permit him to exercise . his individual judgment, it has done so expressly. [Arts.

200; 239(2); 371-A(1 )(b); 371-A(1 )(a); 371-A(2)(b); and 371- A(2)(f), VI Schedule, Para 9(2) (and VI Schedule, Para 18(3), until omitted with effect from January 21, 1972]. [para 17, 26 and 28] [37-C-D; 45-D-E; 46-E] Dr. lndramani Pyarelal Gupta & Ors. v. WR. Natu & Ors. , 1963 SCR 721 = AIR 1963 SC 274 - relied on Chandra Mohan v. State of U. P. & Ors. , AIR 1966 SC 1987; and Rajendra Singh Verma (dead) thr. Lrs. & Ors. v. Lt. Governor (NCT of Delhi) & Ors. 2011 (12) SCR 496 = (2011) 10 SCC 1; Hardwari Lal v. G. D. Tapase & Ors. , AIR 1982 P & H 439; Vice-Chancellor, University of Allahabad &Ors. v. Dr. Anand Prakash Mishra &Ors. , 1996 (10) Suppl. SCR 175 = (1997) 10 SCC 264; M. P. Special Police Establishment v. State of M. P. & Ors. , 2004 (5} Suppl. SCR 1020 = AIR 2005 SC 325; State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. , 1983 (1) SCR 8 =AIR 1982 SC 1249; Rameshwar Prasad (VI) v. Union of India 2006 (1) SCR 562 = (2006) 2 SCC 1 - referred to. 4. 3.

The judgments of this Court do not leave any room for doubt with respect to the fact that, when the Governor does not act as a statutory authority, but as the 8 Head of the State, being Head of the executive and appoints someone under his seal and signature, he is bound to act upon the aid and advice of the Council of Ministers. Thus, the law as evolved and applicable can be summarised to the effect that the Governor is bound to act on the aid and advice of the Council of Ministers, unless he· acts as, "persona designata" i. e. "eo nomine", under a particular statute, or acts in his own discretion under the exceptions carved out by the Constitution itself. Therefore, the appointment of the Lokayukta can be made by the Governor, as the Head of the State, only with the aid and advice of the Council of Ministers, and not independently as a Statutory Authority. [para 33,42 and 74) [49-C; 54-C-D; 70-E-F] State of Maharashtra v. Ramdas Shrinivas Nayak & Anr.

, 1983 (1) SCR 8 =AIR 1982 SC 1249; Narmada Bachao Ando/an v. State of Madhya Pradesh 2011 (12) SCR 84 =AIR 2011 SC 3199; Maru Ram, Bhiwana Ram etc. etc. v. Union of India & Ors. etc. , AIR 1980 SC 2147; State of U. P. & Ors. etc. v. Pradhan Sangh Kshettra Samiti & Ors. etc. , 1995 (2) SCR 1015 =AIR 1995 SC 1512; S. R. Chaudhuri v. State of Punjab & Ors. , 2001 (1) Suppl. SCR 621 =AIR 2001 SC 2707 - referred to. 4. 4. In the instant case, the Governor has misjudged her role and has insisted that under the Act of 1986, the Council of Ministers has no role to play in the appointment of the Lokayukta, and that she could therefore, fill it up in consultation with the Chief Justice of the High Court and the Leader of Opposition. Such attitude is not in conformity, or in consonance with the MEHTA (RETD) & ORS. democratic set up of government envisaged in our Constitution.

The Governor consulted the Attorney General of India for legal advice, and communicated with the Chief Justice of the High Court directly, without taking into confidence, the Council of Ministers. In this respect, she was wrongly advised to the effect that she had to act as a statutory authority and not as the Head of the State. However, it is evident that the Chief Minister had full information and was in receipt of all communications from the Chief Justice, whose opinion is to be given primacy as regards such matters, and can only be overlooked, for cogent reasons. [para 74) [70-D-H] 5. 1.. Courts should not make any undeservi'1g or derogatory remarks against any person, unless the same are necessary for the purpose of deciding the issue involved in a given case. Even where criticism is justified, the court must not use intemperate language and must maintain judicial decorum at all times.

Maintaining judicial restraint and discipline are necessary for the orderly administration of justice. Therefore, while formation and expression of honest opinion and acting thereon, is a necessity to decide a case, courts must always ac~ within the four-corners of the law. [para 71 and 73) State of M. P. & Ors. etc. etc. v. Nandlal Jaiswal & Ors. etc. etc. , 1987 (1) SCR 1=AIR1987 SC 251; AM. Mathur v. Pramod Kumar Gupta, 1990 (2) SCR 110 =AIR 1990 SC 1737; State of Bihar & Anr. v. Nilmani Sahu & Anr. , (1999) 9 SCC 211; In the matter of: "K" a Judicial Officer, 2001 (1) SCR 959 = AIR 2001 SC 972; In the matter of: "RV~ a Judicial Officer, 2004 (5) Suppl. SCR 129 =AIR 2005 SC 1441; and Amar Pal Singh v. State of U. P. &Anr. , AIR 2012 SC 1995 referred to. 5. 2. In the instant case, it appears that the third Judge of the High Court has used harsh language against the Chief Minister, after examining the various letters written by him.

At an earlier stage, the Chief Minister had taken a stand to the effect that a retired Judge, who has been given some other assignment, should not be considered for appointment to the post of Lokayukta. However, with respect to the case of another retired Judge, he seems to have taken an altogether different view. This Court is of the view that the Judge, even if he did not approve of the attitude adopted by the Chief Minister, ought to have maintained a calm disposition and should not have used such harsh language against a Constitutional authority, i. e. Chief Minister. [para 73) [67-G; 68-B-C; 69-G-H; 70-A] Case Law Reference: (2011) 4 SCALE 252 referred to para 5 .

-: 1965 SCR 908 relied on para 6 JT 2012 (10) SC 422 referred to para 9 1978 (1) SCR 423 referred to para 9 1987 (1) SCR 136 referred to para 9 2003 (1) SCR 593 referred to para 9 2006 (1) SCR 261 referred to para 9 AIR 2008 SC 2936 referred to para 9 2010 (6) SCR 857 referred to para 9 1970 (2) SCR 666 referred to para 9 2009 (7) SCR 668 referred to para 9 2010 (6) SCR 857 referred to para 9 1970 (2) SCR 666 referred to para 10 2009 (7) SCR 668 referred to para 11 1996 (3) SCR 474 referred to para 11 2004 (6) Suppl. SCR 1065 referred to para 11 17 . STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS. 2011 (4) SCR 445 referred to para 13 ! AIR 2002 SC 3578 referred to para 14 AIR 2002 Ori 25 referred to para 14 1992 (2) Suppl. SCR 389 referred to para 15 1975 (1) SCR 814 referred to para 17 2004 (5) Suppl. SCR 1020 8 referred to para 18 1983 (1) SCR 8 referred to para 18 1965 SCR53 referred to para 19 1996 (1) Suppl. SCR 637 referred to para 19 1993 (2) Suppl.

SCR 659 referred to para 20 2005 (1) SCR 279 referred to para 21 AIR 1976 Pat 36 referred to para 22 AIR 1982 P & H 439 referred to para 23 1996 (10) Suppl. SCR 175 referred to para 24 1997 (1) SCR 138 referred to para 25 2011 (12) SCR 84 referred to para 25 AIR 1980 SC 2147 referred to para 25 1963 SCR 721 relied on para 26 2006 (1) SCR 562 referred to para 27 1966 AIR 1987 referred to para 28 2011 (12) SCR 496 referred to para 28 1995 (2) SCR 1015 referred to para 30 2001 (1) Suppl. SCR 621 referred to para 31 1974 (1) SCR 697 referred to para 34 2000 (5) Suppl. SCR 200 referred to para 34 2012 (2) SCR 433 referred to para 34 2011 SCR 540 referred to para 34 1963 SCR 774 referred to para 35 AIR 1970 SC 1002 referred to para 35 1980 (3) SCR 1159 referred to para 35 2002 (2) SCR 661 referred to para 35 1956 SCR 267 referred to para 55 1997 (6) Suppl.

SCR595 referred to para 62 2000 (1) SCR 579 referred to para 62 2012 (10) JT 446 referred to para 62 2012 (3) SCR 52 referred to para 62 AIR 1979 SC 478 referred to para 64 (1940) 3 All E. R. 549 referred to para 66 1926 AC 37 referred to para 66 1961 SCR 295 referred to para 67 1987 (1) SCR411 referred to para 67 1987 (2) SCR 1 referred to para 67 1989 (2) SCR 544 referred to para 67 2008 (5) SCR 775 referred to para 67 2010 (10) SCR 779 referred to para 67 1987 (1) SCR 1 referred to para 73 1990 (2) SCR 110 referred to para 73 MEHTA (RETD) & ORS. (1999) 9 sec 211 referred to para 73 2001 (1) SCR 959 referred to para 73 2004 (5) Suppl. SCR 129 referred to para 73 2012 (6) sec 491 referred to para 73 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8814-8815 of 2012 etc. From the Judgment & Order dated 10. 10. 2011 and 18. 01. 2012 of the Hig~ Court of Gujarat at Ahmedabad in Special Civil Application No. 12632 of 2011. WITH SLP (C) Nos. · 2625-2626 & 2687-88 of 2012 Rohintion F.

Nariman, S. G. , K. K. Venugopal, Mukul Rohtagi, Prakash Jani, Soli J. Sorabjee, Yatin Oza, Dr. Rajeev Dhawan, Mihir J. Thakore, Dr. A. M. Singhvi, Huzefa. Ahmadi, Satya Pal Jain, P. P. Rao, Kamal Trivedi, A. G. , Sangeeta Vishen, E. C. Agrawala, Mahesh Agarwal, Ankur Saigal, S. Udaya Kumar Sagar, Bina Madhavan, Praseena E. Joseph, Shaunak Kahsypa, Mehernaz Mehta, Unmesh Shukla, Srushti Tula (for Mis. Lawyer's Knit & Co. ) Sanjay R. Hegde, Amit M. Panchal, S. Nitin, Anil Kumar Mishra-I, D. N. Ray, Lokesh K. Choudhary, Sumita Ray, Sanjay Kapur, Anmol Chandan, Priyanka Das, Ritin Rai, Ashmi Mohan, Kamini Jaiswal, Ezaz Maqbool, Mrigank Prabhakar, Sakashi Banga, Aniruddha P. Mayee, Charudatta Mahindrakar, Pawan Upadhyay, Sarvjit Partap Singh, Anisha Upadhyay, Sharmila Upadhyay, Naresh K. Sharma, Abhijit P. Medh, Rajiv Nanda, Padma Lakshmi Nigam for the appearing parties. The Judgment of the Court was delivered by DR. B. S. CHAUHAN, J. 1.

These appeals have been preferred against the judgments and orders of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 12632 of 2011, dated 10. 10. 2011 and 18. 1. 2012. 2. The facts and circumstances giving rise to these appeals are as under: A. The legislature of Gujarat enacted the Gujarat Lokayukta Act 1986 (hereinafter referred to as the, 'Act, 1986'), which provided for the appointment of a Lokayukta, who must be a retired Judge of the High Court. The said statute, was given effect to, and various Lokayuktas were appointed over time, by following the procedure prescribed under the Act, 1986, for the said purpose, i. e. , the Chief Minister of Gujarat, upon consultation with the Chief Justice of the Gujarat High Court, and the Leader of Opposition in the House, would make a recommendation to the Governor, on the basis of which, the Governor would then issue requisite letters of appointment. B. The post of the Lokayukta became vacant on 24. 11.

2003, upon the resignation of Justice S. M. Soni. The Chief Minister, after the expiry of about three years, wrote a letter dated 1. 8. 2006 to the Chief Justice, suggesting the name of Justice K. R. Vyas for appointment to the post of Lokayukta. The name of Justice K. R. Vyas was approved by the Chief Justice, vide letter dated 7. 8. 2006, and the Chief Minister, after completing other required formalities, forwarded the said name, to the Governor on 10. 8. 2006, seeking his approval, as regards appointment. The file remained pending for a period of 3 years, and was returned on 10. 9. 2009, as Justice K. R. Vyas had been appointed as Chairman of the Maharashtra State Human Rights Commission, on 21. 8. 2007. C. On 29. 12.

2009, Private Secretary, to the Governor of Gujarat, addressed a letter to the Registrar General of the High Court of Gujarat, requesting that a panel of names be suggested by the Chief Justice, so that the same could be considered by the Governor, with respect to their possible appointment, to the post of Lokayukta. D. The Chief Minister, also wrote a letter dated 8. 2. 2010, to the Chief Justice, requesting him to send a panel of names of three retired Judges for the purpose of consideration of one of them to be finally appointed as Lokayukta. The Chief Justice, vide letter dated 24. 2. 2010, suggested the names of four retired Judges, taking care to stipulate that the said names were not arranged in any order of preference, and that any one of them, could thus, be chosen by the Governor. E. The Chief Minister after receiving the aforementioned letter, made an attempt to consult the Leader of Opposition, regarding the said names by writing a letter dated 2. 3.

2010, who vide letter dated 3. 3. 2010, was of the opinion that under the Act, 1986 the Chief Minister, had no right to embark upon any consultation, with respect to the appointment of the Lokayukta. There was some further correspondence of a similar nature between them on this issue. F. The Leader of Opposition, vide letter dated 4. 3. 2010, pointed out to the Chief Minister, that the process of cor:isultation regarding the appointment of the Lokayukta, had already been initiated by the Governor directly, and thus, the Chief Minister should not attempt to interfere with the same. The Leader of Opposition did not attend any meeting held in this regard, and the Governor also did not think it proper to indulge in any further consultation with the Chief Minister with respect to the said issue. G.

In the meantime, as has been mentioned above, not only were the meetings called by the Chief Minister, not attended by the Leader of Opposition, but it also appears that simultaneously, the Council of Ministers had already considered the names as recommended by the Chief Justice, and vide letter dated 24. 2. 2010, had proceeded to approve the name of Justice J. R. Vora (Retd. ), for appointment to the post of Lokayukta, and the file was sent to the Governor for approval and consequential appointment. However, no orders were passed by the Governor. H. The Governor instead sought the opinion of the Attorney General of India, as regards the nature of the process of consultation, required to be adopted in the matter of appointment of the Lokayukta. The Governor also addressed a letter to the Chief Justice dated 23. 4. 2010, soliciting his opinion as to who would be a better choice for appointment to the post of Lokayukta, between Justice R. P. Dholakia (Retd.

), who was the President of the Gujarat Consumer Disputes Redressal Commission and Justice J. R. Vora (Retd. ), from among the panel of names that had been sent by the Chief Justice, vide letter dated 24. 2. 2010. I. The Attorney General in his opinion dated 23. 4. 2010, stated that the Chief Justice ought to have suggested only one name, and that he could not have required to recommend a panel of names. The Chief Justice on 27. 4. 2010, wrote to the Governor stating that, in his opinion, Justice R. P. Dholakia (Retd. ) would be the more appropriate choice. However, despite this, the Governor did not issue a letter of appointment to anyone, and requested the Chief Justice vide letter dated 3. 5. 2010, to recommend only one name, as opined by the Attorney General, vide his letter dated 23. 4. 2010. J. In response to the suggestion made by the Governor, the Chief Justice wrote to the Governor on 29. 12. 2010, recommending the name of Justice S. D. Dave (Retd.

), for appointment to the post of Lokayukta. The Chief Justice also wrote a letter to the Chief Minister on 31. 12. 2010, recommending the name of Justice S. D. Dave, in place of that of Justice J. R. Vora, as Justice J. R. Vora had already been appointed elsewhere. K. The Chief Minister wrote a letter dated 21. 2. 2011, to the Chief Justice by way of which, he re-iterated the request of the State Government, to appoint Justice J. R. Vora as Lokayukta, owing to the fact that the process of consultation was already complete and further that, Justice J. R. Vora had expressed his willingness to accept his appointment to the post of Lokayukta, if the same was offered to him, and in this regard, the Chief Minister even wrote a second letter, dated 4. 5. 2011, to the Chief Justice, requesting him to reconsider the said issue. L. The Chief Justice, vide letter dated 7. 6. 2011, made a 8 suggestion to the Governor to the effect that, Justice R. A. Mehta (Retd.

) · be appointed as Lokayukta, and the said recommendation was also sent by the Chief Justice, to the Chief Minister. The Governor, on the same day, i. e. 7. 6. 2011, requested the Chief Minister to expedite the process for the appointment of Justice R. A. Mehta, as Lokayukta. M. The Chief Minister, vide letter dated 16. 6. 2011, requested the Chief Justice to consider certain objections raised by him against the appointment of Justice R. A. Mehta as Lokayukta, which included among other things, the fact that · Justice R. A. Mehta was above 75 years of age, as also his association with NGOs and social activist groups, known for their antagonism against the State Government; and further, that he possessed a specific biased disposition, against the Government. To support the apprehensions raised by him, the Chief Minister annexed along with his letter, 11 clippings of newspaper. N. The Chief Justice, vide letter dated 2. 8.

2011, replied to the aforementioned letter of the Chief Minister, pointing out that Justice R. A. Mehta was not ineligible for appointment to the post of Lokayukta on the basis of any of the points raised by the Chief Minister, and that he was a man of great repute and high integrity. Justice R. A. Mehta had never made any public statement detrimental to the society as a whole, nor had he ever showri any bias either with respect to, or against any government, and finally, that he was not a member of any NGO. Even otherwise, membership of a person of an NGO, or his social activities, cannot be treated as a basis for his disqualification, for being appointed to the post of Lokayukta. 0. The Governor, vide letter dated 16. 8. 2011, requested the Chief Minister to process the appointment of Justice R. A. Mehta as Lokayukta. The Leader of Opposition also wrote a letter dated 16. 8.

2011, to the Chief Minister, informing him of the fact that he had already been consulted by the Governor, as regards the said issue, and that in connection with the same, he had agreed to the appointment of Justice R. A. Mehta as Lokayukta. At this juncture, the Governor issued the requisite warrant from her office on 25. 8. 2011, appointing Justice R. A. Mehta as Lokayukta. P. The Gujarat Lokayukta (Amendment) Bill, 2011 was passed by the Legislative Assembly of the State of Gujarat on 30. 3. 2011, which primarily sought to widen the definition of the term, "public functionaries", contained in Section 2(7) of the Act, 1986, by including a large number of other functionaries, within 0 its purview, such as Mayors, Deputy Mayors of the Municipal Corporation, the President or the Vice-President of Municipalities, the Sarpanch and Up-Sarpanch of Village Panchayats etc.

The Governor returned the said Bill for reconsideration, as she realised that the Lokayukta, however competent and efficient he may be, would be unable to look into complaints of irregularities made against such a large number of persons. Q. The Governor also refused to issue an Ordinance to amend the Act, 1986, wherein Section 3 was to be amended, which would have changed the composition of the consultees as contemplated under the Act, 1986, for the purpose of deciding upon the appointment of the Lokayukta, on the ground that there was no grave urgency for bringing in such an Ordinance, all of a sudden. R. The State of Gujarat filed writ petition No. 12632 of 2011 dated 5. 9. 2011, in the High Court of Gujarat, challenging the appointment of Justice R. A. Mehta to the post of Lokayukta. The matter was decided vide judgment and order dated 10. 10. 2011, wherein the two Judges while hearing the case differed in their views to a certain extent.

Accordingly, the matter was then referred to a third Judge, who delivered his judgment dated 18. 1. 2012, dismissing the said writ petition. Hence, these appeals. RIVAL CONTENTIONS: 3. Mr. K. K. Venugopal, Mr. Soli Sorabjee, Dr. Rajeev Dhavan, Mr. Mihir J. Thakore, and Mr. Yatin Oza, learned senior counsel appearing for the appellants, have submitted that the Governor, being a titular head of State, is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister, and that the actions of the Governor, indulging in correspondence with, and issuing directions to other statutory authorities, are contrary to the principles of Parliamentary democracy, and thus, the Governor ought not to have corresponded with, and consulted the Chief Justice of the High Court of Gujarat directly. It was also contended that, the Chief Justice ought to have recommended, a panel of names for consideration by the other consultees, i. e.

, the Chlef Minister and Leader of Opposition, and that he could not recommend only one name, as the same would cause the entire process to fall within the ambit Of concurrence, rather than that of consultation. Furthermore, consultation by the Governor with the Attorney General of India, who is alien to the Act, 1986, runs contrary to the statutory provisions of the said Act. The Governor is not acting merely as a statutory authority, but as the Head of the State, and hence, the entire procedure adopted by her is in clear contravention of the actual procedure, contemplated by the statute, for the purpose of selection of the Lokayukta. The Chief Justice ought to have taken into consideration, the objections raised by the appellants, qua the recommendation made by the Chief Justice with respect to the appointment of respondent no. 1.

The third Hon'ble Judge made unwarranted and uncalled for remarks in carping language in connection with the Chief Minister which tantamount to resounding strictures, and the same require to be expunged. Thus, the appeals deserve to be allowed and the majority judgments (impugned), set aside. 4. Per contra, Mr. R. F. Nariman, learned Solicitor General of India, Mr. P. P. Rao, Dr. AM. Singhvi, and Mr. Huzefa Ahmadi, learned senior counsel appearing on behalf of the respondents, 8 have opposed the appeals, contending that the Governor had acted as a statutory authority under the Act, 1986, and not as the head of the State, and thus, she was not required to act in accordance with the aid and advice of the Council of Ministers. Furthermore, no fault can be found with the procedure adopted by the Governor, as the objections raised by the Chief Minister were thoroughly considered by the Chief Justice, and no substance was found therein.

The Chief Justice has primacy of opinion in the matter of consultation, and therefore, the sending of a panel of names instead of just one name, does not amount to a violation of the scheme of the Act. A perusal of the statute and the sequence of events herein, makes it crystal clear, that the Governor acted in correct perspective, and that no fault can be found with the selection of respondent no. 1 to the post of Lokayukta. The appellants have in fact, been avoiding the appointment of a Lokayukta for a period of more than nine years, for which there can be no justification. The harsh language used by the 3rd Judge was warranted because of the defiant attitude adopted by the Chief Minister which was · appalling, and thus, the remarks do not need to be expunged. The appeals hence, lack merit and are liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.

These appeals raise legal issues of great public importance, such as, what is the meaning of the term 'consultation' contained in Section 3 of the Act, 1986, and also whether the opinion of the Chief Justice has primacy with respect to the appointment of the Lokayukta. The twin issues of consultation vis-a-vis concurrence and MEHTA (RETD) & ORS. [DR. B. S. CHAUHAN, J. ] primacy, have been debated extensively before this Court and answered by larger benches while interpreting Article 124(2) of the Constitution in matters relating to appointment of Judges of Supreme Court and High Court. The present case also involves the determination of the meaning of the word "consultation" in Section 3 of the Act, 1986 in the said context. However, a two-Judges bench in the case of Suraz Trust India v. Union of India & Anr.

, (2011) 4 SCALE 252, has entertained the questions raised while doubting the correctness of the larger bench decisions that is pending consideration before a three-Judges bench presided over by Hon'ble the Chief Justice. 6. In The Keshav Mills Co. Ltd. , Pet/ad v. The Commissioner of Income-tax, Bombay North, Ahmedabad, AIR 1965 SC 1636, this Court held: "...... When thls Court decides questions of law, its decisions are, under Art. 141, binding on all Courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided.

That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:- What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based?

On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed ? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court. " 7.

It is, therefore, evident that before making a reference to a larger Bench, the Court must reach a conclusion regarding the correctness of the judgment delivered by it previously, particularly that, which has been delivered by a Bench of nine Judges or more, and adjudge the effect of any error therein, upon the public, what inconvenience, hardship or mischief it would cause, and what the exact nature of the infirmity or error that warrants a review of such earlier judgments. In the instant case, we do not find any such compelling circumstance that may warrant a review, and thus, taking into consideration the facts of the present case, we are not convinced that this matter requires a reference to a larger Bench. MEHTA (RETD) & ORS. [DR. B. S. CHAUHAN, J. ] 8.

Before proceeding with the case, it is necessary to refer to certain relevant statutory provisions: It is evident from the Preamble of the Act, 1986 that the Lokayukta has two duties, firstly, to protect honest public functionaries from false complaints and allegations, and 8 secondly, to investigate charges of corruption filed against public functionaries. Hence, investigation of such charges of corruption against public functionaries is not the only responsibility that the Lokayukta is entrusted with. Section 2(8) of the Act,· 1986, defines the term, "Public servant", as having the same meaning, that has been given to it, under Section 21 of the Indian Penal Code, 1860. Section 3 (1) of the Act, 1986, reads as under: "For the purpose of conducting investigations in accordance with 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 after consultation with the Chief Justice of the High Court and except where such appointment is to be made at a time when the Legislative Assembly of the State of Gujarat has been dissolved or a Proclamation under Article 356 of the Constitution is in operation in the State of Gujarat, after consultation also with the Leader of the Opposition in the Legislative Assembly, or if there be no such Leader, a person elected in this behalf by the members of the Opposition in that House in such manner as the Speaker may direct.

" (Emphasis added) Section 4 prescribes certain disabilities/disqualifications with respect to the appointment of the Lokayukta, and stipulates that he must not be a Member of Parliament or of any State Legislature, and also that he must not hold any office of trust, or profit and even if he does hold any such pos\, that he must tender his resignation as regards the same, before he is appointed as Lokayukta, and also further, that he must not be affiliated with any political party. Section 6 of the said Act, provides that the Lokayukta shall 8 not be removed from office, except under an order made by the Governor, on the grounds of proven misbehaviour, or incapacity, after an inquiry into the same which has been conducted by the Chief Justice of the High Court of the State, or by a Judge nominated by him, in which, the Lokayukta is informed of the charges against him, and has been given, a reasonable opportunity of being heard, with respect to the same.

Section 7 of the Act, 1986 provides for matters which may be investigated by the Lokayukta, against public functionaries, which may include the Chief Minister and the Council of Ministers also. Section 12 of the Act, 1986 provides that the Lokayukta, after investigation of a complaint against the Chief Minister, if any substance is found therein, shall submit a written report, communicating the findings arrived at by him, along with such relevant materials/documents and other evidence, that are in his possession, to the Chief Minister himself. Clause 2 thereof provides that, the Chief Minister shall then place the said report, without any delay, before the Council of Ministers. Section 19 of the Act, empowers the Governor to confer additional functions upon the Lokayukta, after having consultation with the Lokayukta, in relation to the eradication of corruption, which may be specified, by publishing a notification with respect to the same, in the Official Gazette.

Section 20 of the Act, deals with the power to exclude complaints against certain classes of public functionaries. Under this Section, the State Government, upon a recommendation made by the Lokayukta, may exclude, by Notification in the Official Gazette, complaints involving allegations against persons belonging to a particular class of public functionaries, as has been specified in the said notification, from under the jurisdiction of the Lokayukta. CONSULTATION- means: 9. In State of Gujarat & Anr. v. Gujarat Revenue Tribunal Bar Association & Anr. , JT 2012 (10) SC 422, this Court held that, the object of consultation is to render its process meaningful, so that it may serve its intended purpose. Consultation requires the meeting of minds between the parties that are involved in the cons! Jltative process, on the basis of material facts and points, in order to arrive at a correct, or at least a satisfactory solution.

If a certain power can be exercised only after consultation, such consultation must be conscious, effective, meaningful and purposeful. To ensure this, each party must disclose to the other, all relevant facts, for due deliberation. The consultee must express his opinion only after complete consideration of the matter, on the basis of all the relevant facts and quintessence. Consultation may have different meanings in different situations, depending upon the nature and purpose of the statute. (See also: UOI v. Sankalchand Himatlal Sheth & Anr. , AIR 1977 SC 2328; State ofKera/a v. Smt. A. Lakshmikutty & Ors. , AIR 1987 SC 331; High Cowt of Judicature for Rajasthan v. P. P Singh & Anr. , AIR 2003 SC 1029; UOI & Ors. v. Kali Dass Batish &Anr. , AIR 2006 SC 789; Andhra Bank v. Andhra Bank Officers & Anr. , AIR 2008 SC 2936; and Union of India v. R. Gandhi, President, Madras Bar Association, (2010) 11 SCC 1). 10. In Chandramouleshwar Prasad v. The Patna High .. Court & Ors.

, AIR 1970 SC 370, this Court held that, consultation or deliberation can neither be complete nor effective, before the parties thereto, make their respective points of view, known to the other, or others, and discuss and examine the relative merits of their views. If one party makes a proposal to the other, who has a counter proposal in mind, which is not communicated to the proposer, a direction issued to give effect to the counter proposal, without any further 8 discussion with respect to such counter proposal, with the proposer cannot be said to have been issued after consultation. 11. In N. Kannadasan v. Ajoy Khose & Ors. , (2009) 7 SCC 1, this Court considered a case regarding the appointment of the Chairman of a State Consumer Disputes Redressal Commission, under the provisions of the Consumer Protection Act 1986, and examined the communication between the consultant and consultee, i. e.

the State Government and the Chief Justice of the High Court, and observed that, where the High Court had placed for consideration, certain material against a person, whose name was proposed by the State Government, for consideration with respect to his appointment to the post of Chairman of the State Commission, and no specific explanation was provided for the non-consideration of such material, then an appointment made in light of such circumstances, cannot be held to be an appointment made after due consultation. The Court held as under:"But, where a decision itself is thickly clouded by nonconsideration of the most relevant and vital aspect, the ultimate appointment is vitiated not because the appointee is not desirable or otherwise, but because mandatory statutory requirement of consultation has not been rendered effectively and meaningfully".

Thus, in such a situation, even if a person so appointed was in theory, eligible for the purpose of being considered for appointment to the said post, the fact that the process of consultation was vitiated, would render the ultimate order of appointment vulnerable, and liable to questioning. In this case, this Court also considered its earlier decisions, in the cases of Ashish Handa, Advocate v. Hon'ble the Chief Justice of High Court of Punjab & Haryana & Ors. , AIR 1996 SC 1308; and Ashok Tanwar & Anr. v. State of H. P. & Ors. , AIR 2005 SC 614, and came to the conclusion that, the Chief Justice must send only one name, and not a panel of names for consideration, or else, the word 'primacy' would lose its significance. If the Chief Justice sends a panel of names, and the Governor selects one from them, then it would obviously become the primacy of the Governor, and would not remain the primacy of the Chief Justice, which is the requirement under the law.

The concept of primacy in such a situation, has been included, owing to the fact that, the Chief Justice of the High Court of the concerned State, is the most appropriate person to judge the suitability of a retired Judge, who will act as the Lokayukta and the object of the Act would not be served, if the final decision is left to the executiye. The opinion of the Chief Justice would be entirely independent, and he would most certainly be in a position to determine who the most suitable candidate for appointment to the said ·office is. This Court has, therefore, explained that, the primacy of the opinion of the Chief Justice must be accepted, except for cogent reasons, and that the term consultation, for such purpose shall mean concurrence. 12. In N.

Kannadasan (supra), while interpreting the provisions of Section 16 of the Consumer P~otection Act, 1986, this Court held that, consultation under the said Act, cannot be equated with consultation, as contemplated by the Constitution under Article 217, in relation to the appointment of a Judge of the High Court. However, the Court further held, that primacy will be given to the opinion of the Chief Justice, where such consultation is statutorily required. 13. In Centre For PIL & Anr. v. Union of India & Anr.

, AIR 2011 SC 1267, this Court considered the argument of unanimity, or consensus, inthe matter of the appointment of the Central Vigilance Commissioner and observed: "It was further submitted that if unanimity is ruled out then the very purpose of inducting the Leader of the Opposition in the process bf selection will stand defeated because if the recommendation of the Committee were to be arrived at by majority it would always exclude the Leader of the Opposition since the Prime Minister and the Home Minister will always be ad idem. xx xx xx We find no merit in these submissions. To accept the contentions advanced on behalf of the petitioners would mean conferment of a "veto right" on one of the members of the HPC. To confer such a power on one of the members would amount to judicial legislation. " 14. This Court, in Justice K. P. Mahapatra v. Sri Ram o Chandra Nayak & Ors.

, AIR 2002 SC 3578, considered the provisions of Section 3(1 )(a) of the Orissa Lokpal and Lokayuktas Act, 1995, which are pari materia with those of Section 3 of the Act, 1986. In the aforementioned case, the question that arose was with respect to the meaning of consultation, as contemplated under the Orissa Act, which is a verbatim replication of Section 3 of the Gujarat Act, and upon consideration of the statutory provisions of the Act, this Court came to the conclusion that: "12. ....... 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 a must or a sine qua non.

For such appointment, the 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. xx xx xx xx xx 16. Applying 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 ofhis qualification, it is apparent that the consultation with the Chief Justice is mandatory and his opinion would have primacy. " (Emphasis added) The aforesaid appeal was filed against the judgment of the Orissa High Court in Ram Chandra Nayak v.

State of Orissa, AIR 2002 Ori 25, wherein the High Court had held that the Governor, while appointing a person as Lokpal, must act upon 0 the aid and advice of the Council of Ministers, and that there was no question of him exercising any power or discretion in his personal capacity. The said judgment was reversed by this Court on other grounds, but not on this issue. 15. In Indian Administrative Service (S. C. S. ) Association, U. P. & Ors. v. Union oflndia & Ors. , (1993) Supp. 1 SCC 730, this Court explained the term 'Consultation', though the same was done in the context of the promotion of certain officials under the provisions of the All India Services Act, 1951. The Court laid down various propositions with respect to consultation, inter-alia: "(6) No 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.

It is for the Court to detennine in each case in the light of its facts and circumstances whether th~action is 'after . consultation'; 'was, in fact, consulted' or was it a 'sufficient consultation'. " 16. Thus, in view of the above, the meaning of consultation varies from case to case, depending upon its fact-situation and the context of the statute, as well as the object it seeks to achieve. Thus, no straight-jacket formula can be laid down in this regard. Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrence.

The court must examine the fact-situation in a given case to determine whether the process of consultation, as required under the particular situation did in fact, stand complete. THE MANNER IN WHICH THE GOVERNOR ACTS: 17. In Samsher Singh v. State of Punjab & Anr. , AIR 1974 SC 2192, this Court expounded the universal rule that, the Governor is bound to act only in accordance with the aid and advice of the Council of Ministers, headed by the Chief Minister. The Rules of Business and allocation of business among the Ministers, related to the provisions of Article 53 in the case of the President, and Article 154 in the case of the Governor, state that executive power in connection with the same, shall be exercised by the President or the Governor either directly, or through subordinate officers. The President is the formal or Constitutional head of the Executive. The real executive powers, however, are vested in the Ministers of the Cabinet.

Wherever the Constitution requires the satisfaction of the President or the Governor, for the purpose of exercise by the President or the 1'. 3overnor, any power or function, such satisfaction is not the personal satisfaction of the President, or of the Governor, in their personal capacity, but the satisfaction of the President or Governor, in the Constitutional sense as contemplated in a Cabinet system of Government, that is, the satisfaction of the Council of Ministers, on whose aid and advice the President, or the Governor, generally exercise all their powers and functions. The President of India is not a glorified cipher. He represents the majesty of the State, and is · at its apex, though only symbolically, and has a different rapport with the people and parties alike, being above politics. His vigilant presence makes for good governance if only he uses, what Bagshot described as, "the right to be consulted, to warn and to encourage".

Whenever the Constitution intends to confer discretionary powers upon the Governor, or to permit him to exercise his individual judgment, it has done so expressly. For this purpose, the provisions of "Articles 200; 239(2); 371-A(1)(b); 371-A(1)(a); 371-A(2)(b); and 371-A(2)(f), VI Schedule, Para 9(2) (and VI Schedule, Para 18(3), until omitted with effect from January 21, 1972), may be referred to. Thus, discretionary powers exist only where they are expressly spelt out. However, the power to grant pardon or to remit sentence (Article 161), the power to make appointments including that of the Chief Minister (Article 164), the Advocate-General (Article 165), the District Judges (Article 233), the Members of the Public Service Commission (Article 316) are in the category where the Governor is bound to act on the aid and advice of the Council of Ministers.

Likewise, the power to prorogue either House of Legislature or to dissolve the Legislative Assembly (Article 174), the right to address or send messages to the Houses of the Legislature (Article 175 and Article 176), the power to assent to Bills or withhold such assent (Article 200), the power to make recommendations for demands of grants [Article 203(3)], and the duty to cause to be laid every year the annual budget (Article 202), the power to promulgate ordinances during recess of the Legislature (Article 213) also belongs to this species of power. Again, the obligation to make available to the Election Commission, requisite staff for discharging functions conferred upon it by Article 324(1) and Article 324(6), the power to nominate a member of the Anglo- Indian Community to the Assembly in certain situations (Article 333), the power to authorise the use of Hindi in proceedings in the High Court [Article 348(2)], are illustrative of the functions of the Governor, qua the Governor.

The Governor shall act with aid and advice of the Council of Ministers, save in a few well known exceptional situations. Without being dogmatic or exhaustive, this situation relates to the choice of the Chief Minister, dismissal of the government, and dissolution of the House. 18. In M. P. Special Police Establishment v. State of M. P. & Ors. , AIR 2005 SC 325, the question that arose was whether, for the purpose of grant of sanction for the prosecution of Ministers, for offences under the Prevention of Corruption Act and/or, the Indian Penal Code, the Governor, while granting such sanction, could exercise his own discretion, or act contrary to the advice rendered to him by the Council of Ministers. The Court, in this regard, first considered the object and purpose of the statutory provisions, which are aimed at achieving the prevention and eradication of acts of corruption by public functionaries.

The Court then also considered, the provisions of Article 163 of the Constitution, and took into consideration with respect to the same, a large number of earlier judgments of this Court, including the cases of Samsher Singh (supra); and State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. , AIR 1982 SC 1249, and thereafter, came to the conclusion that, in a matter related to the grant of sanction required to prosecute a public functionary, the Governor is usually required , to act in accordance with the aid and advice rendered to him by the Council of Ministers, and not upon his own discretion. However, an exception may arise while considering the grant of sanction required to prosecute the Chief Minister, or a Minister, where, as a matter of propriety, the Governor may have to act upon his own discretion. Similar would be the situation in a case where, the Council of Ministers disables or disentitles itself from providing such aid and advice.

Such a conclusion by the court, was found to be necessary, for the MEHTA (RETD) & ORS. [DR. B. S. CHAUHAN, J. ] reason that the facts and circumstances of a case involving any of the aforementioned fact situations, may indicate the possibility of bias on the part of the Chief Minister, or the Council of Ministers. This Court carved out certain exceptions to the said 8 provision. For instance, where bias is inherent or apparent; or, where the decision of the Council of Ministers is wholly irrational, or, where the Council of Ministers, because of some incapacity or other situation, is disentitled from giving such advice; or, where it refrains from doing so as matter of propriety; or in the case of a complete break down of democracy.

Article 163(2) of the Constitution provides that it would be permissible for the Governor to act without ministerial advice in certain other situations, depending upon the circumstances therein, even though they may not specifically be mentioned in the Constitution as discretionary functions; e. g. , the exercise of power under Article 356(1 ), as no such advice will be available from the Council of Ministers, who are responsible for the break down of Constitutional machinery, or where one Ministry has resigned, and the other alternative Ministry cannot be formed. Moreover, Clause 2 of Article 163 provides that the Governor himself is the final authority to decide upon the issue of whether he is required by or under the Constitution, to act in his discretion.

The Council of Ministers therefore, would be rendered incompetent in the event of there being a difference of opinion with respect to such a question, and such a decision taken by the Governor, would not be justiceable in any court. There may also be circumstances where, there are matters, with respect to which the Constitution does not specifically require the Governor to act in his discretion, but the Governor, despite this, may be fully justified to act so e. g. , the Council of Ministers may advise the Governor to dissolve a House, which may be detrimental to the interests of the nation. In such circumstances, the Governor would be justified in refusing . to accept the advice rendered to him, and act in his discretion. There may even be circumstances where ministerial advice is not available at all, i. e.

, the decision regarding the choice of Chief Minister under Article 164(1), which involves choosing a Chief Minister after a fresh election, or in the event of the death or resignation of the Chief Minister, or dismissal of the Chief Minister, who loses majority in the House and yet refuses to resign, or agree to dissolution. The Governor is further not required to act on the advice of the Council of Ministers, where some other body has been referred for the purpose of consultation i. e. , Article 192(2) as regards decisions on questions related to the disqualification of members of the State Legislature. 19. In Brundaban Nayak v. Election Commission of India & Anr. , AIR 1965 SC 1892, this Court held that while dealing with a case under Article 192 of the Constitution, the Governor must act in accordance with advice of the Election Commission, and that he does not require any aid or advice from the Council of Ministers. (See also: Election Commission of India & Anr. v. Dr.

Subramanian Swamy & Anr. , AIR 1996 SC 1810). 20. The issue of primacy of the Chief Justice in such cases, has also been considered and approved by this Court in Ashish Handa (supra); and Supreme Court Advocates-on-Record Association & Anr. v. Union of India, AIR 1994 SC 268. 21. Thus, where the Governor acts as the Head of the State, except in relation to areas which are earmarked under the Constitution as giving discretion to the Governor, the exercise of power by him, must only be upon the aid and advice of the Council of Ministers, for the reason that the Governor, being the custodian of all executive and other powers under various provisions of the Constitution, is required to exercise his formal Constitutional powers, only upon, and in accordance with, the aid and advice of his Council of Ministers. He is, therefore, bound to act under the Rules of Business framed MEHTA (RETD) & ORS. [DR. B. S. CHAUHAN, J. ) under Article 166 (3) of the Constitution.

(Vide: Pu Myllai H/ychho & Ors. v. State of Mizoram & Ors. , AIR 2005 SC 1537). 22. In Ram Nagina Singh & Ors. v. S. V. Sohni & Ors. , AIR 1976 Pat 36, the Patna High Court considered the issue involved herein, i. e. , the appointment of the Lokayukta, under the Bihar Lokayukta Act, 1974, and held that, ordinarily, when a power is vested, even by virtue of a statute, in the Governor, he must act in accordance with the aid and advice tendered to him by the Council of Ministers, for the simple reason that, he does not cease to be an Executive Head, as mentioned under the Constitution, merely because such authority is conferred upon him by a statute. It would, in fact, be violative of the scheme of the Constitution, if it was held that the mere use of the word, "Governor'' in any statute, is sufficient to impute to the legislature, an intention by it, to confer a power, "eo nomine".

Any interpretation other than the one mentioned above, would therefore, be against the concept of parliamentary democracy, which is one of the basic postulates of the Constitution. In view of the Rules of Executive Business, the topic involving appointment of the Lokayukta, must be brought before the Council of Ministers. Even if the appointment in question, is not governed by any specific rule in the Rules of Executive Business, such appointment must still be made following the said procedure, for the reason that the Rules of Executive Business cannot be such, so as to override any bar imposed by Article 163(3) of the Constitution. However, a different situation altogether may arise, where the Governor ex-officio, becomes a statutory authority under some statute. 23. In Hardwari Lal v. G. D. Tapase & Ors.

, AIR 1982 P & H 439, the powers of the Governor, with respect to the appointment/removal of the Vice-Chancellor of Maharshi Dayanand University, Rohtak under the Maharshi Dayanand University (Amendment) Act, 1980, were considered, wherein a direction was sought with regard to the renewal of the term of the Vice-Chancellor of the said University. Certain promises had been made in connection with the same, while making such appointment. The Court held that, as the Governor was the exofficio Chancellor of the University, therefore, by virtue of his office, he was not bound to act under the aid and advice of the Council of Ministers. Under Article 154 of the Constitution, the executive powers of the State are vested in the Governor, which may be exercised by him either directly, or through officers subordinate to him, in accordance with the provisions of the Constitution.

Article 161 confers upon the Governor, a large number of powers including the grant of pardon, reprieves, respites or remissions of punishment etc. Such. executive power can be exercised by him, only in accordance with the aid and advice of the Council of Ministers. Article 162 states that the executive power of the State, shall extend to all such matters, with respect to which, the legislature of the State has the power to make laws. Therefore, the said provision, widens the powers of the Governor. Article 166(3) of the Constitution, further bestows upon the Governor the power to make rules for more convenient transactions of business, of the Government of the State, and also for the purpose of allocating among the Ministers of State, such business. There are several ways by which, a power may be conferred upon the Governor, or qua the Governor, which will enable him to exercise the said power, by virtue of his office as Governor.

Therefore, there can be no gainsaying that all the powers that are exercisable by the Governor, by virtue of his office, can be exercised only in accordance with the aid and advice of the Council of Ministers, except insofar as the Constitution expressly, or perhaps by necessary implication, provides otherwise. Thus, in such a situation, the Statute makes a clear cut distinction between two distinct authorities, namely, the Chancellor and the State Government. When the legislature intentionally makes such a distinction, the same must also be interpreted distinctly, and while dealing with the case of the Vice-Chancellor, the Governor, being the Chancellor of the University, acts only in his personal capacity, and therefore, the powers and duties exercised and performed by him under a statute related to the University, as its Chancellor, have absolutely no relation to the exercise and performance of the powers and duties by him, while he holds office as the Governor of the State. 24.

In Vice-Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra & Ors. , (1997) 10 SCC 264, this Court dealt with the power of the Governor of the State of U. P. ex-officio, with respect to all the Universities established under 0 the provisions of the U. P. State Universities Act, 1973 (hereinafter referred to as 'the Act 1973). Section 68 of the Act, 1973 empowers the Chancellor to entertain any question, related to the appointment, selection, promotion or termination of any employee in the University. In the meanwhile, the Legislature of the State of U. P. , enacted the U. P. Public Serv)ces (Reservation of Schedule Castes, Tribes and Backward Classes) Act, 1994 (hereinafter referred to as 'the Act 1994), providing for a particular reservation. This Court held that, Section 6 of the Act, 1994 enables the State Government to call for records and direct enforcement of the provisions of the said Act.

This Court also held that, when the Governor exofficio, acts as the Chancellor of a University, he acts under Section 68 of the Act, 1973, and discharges statutory duties as mentioned under the Act, 1973, but when the Government calls for the record of appointment of any employee, to examine whether the reservation policy envisaged under the Act, 1994, has been given effect to or not, and takes action in such respect, then he acts in his capacity as Governor, under Article 163 of the eonstitution of India and is therefore, bound to act upon the aid and advice of the Council of Ministers. 25. The Constitutional provisions hence, clearly provide that the Governor does not exercise any power by virtue of his office, in his individual discretion. The Governor is aided and advised by the Council of Ministers in the exercise of such powers, that have been assigned to him, under Article 163 of the Constitution.

The executive power of the State, is coextensive with the legislative power of the State, and the Governor in the Constitutional sense, discharges the functions assigned to him under the Constitution, with the aid and advice of the Council of Ministers, except insofar as he is, by or under the Constitution, required to exe