- (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 consultation 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 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 shown 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. O. 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 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 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 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.;