"Governor can make appointment only on Chief Minister’s advice"
The Governor of Karnataka can appoint the Lokayukta or the Upalokayukta only on the advice tendered by the Chief Minister, and the Chief Justice of the High Court is only one of the consultees, and his views will have no primacy, the Supreme Court held on Friday.
A Bench of Justices K.S. Radhakrishnan and Madan B. Lokur gave this ruling in different, but concurring, judgments while quashing the appointment of the former judge K. Chandrashekaraiah as the Upalokayukta by notification on January 21, 2012.
The Bench upheld the Karnataka High Court order quashing the appointment.
It quashed the appointment because the Chief Minister did not have an effective consultation with the then Chief Justice of the Karnataka High Court. The Bench made it clear that as Mr. Chandrashekaraiah, the appellant, was eligible for the post and there were no adverse remarks against him, the State could consider his name again for selection in consultation with the Chief Justice of the High Court.
In his judgment, Justice Radhakrishnan said, “The Governor, as per the statute, can appoint only on the advice tendered by the Chief Minister and not on the opinion expressed by the Chief Justice or any of the consultees.”
The Bench did not agree with the views and directions given by the High Court and said “the views that the Chief Justice of the High Court has got primacy are beyond the scope of the Lokayukta Act, and the High Court has indulged in a legislative exercise which is impermissible in law”.
Justice Lokur in his judgment said, “In my opinion, the Karnataka High Court was right in holding that there was no consultation with the Chief Justice specifically on the appointment of Justice Chandrashekaraiah as Upalokayukta. His appointment, therefore, is void ab initio.”
Justice Radhakrishnan said, “The Chief Minister, in my view, has, however, committed an error in not consulting the Chief Justice of the High Court in the matter of appointment of Justice Chandrashekaraiah as Upalokayukta. Records indicate that there was no meaningful and effective consultation or discussion of the names suggested among the consultees before advising the Governor for appointment to the post of Upalokayukta. The appointment of Justice Chandrashekaraiah as Upalokayukta, therefore, is in violation of Section 3(2) (b) of the Act since [neither] the Chief Justice of the High Court was consulted, nor was the name deliberated upon before advising or appointing him as Upalokayukta. Consequently, the appointment of Justice Chandrashekaraiah as Upalokayukta cannot stand in the eye of law and he has no authority to continue or hold the post…”
Justice Radhakrishnan said, “I, however, make it clear that there is no primacy in the views expressed by any of the consultees, and after due deliberations of the names suggested by the consultees — including the name, if any, suggested by the Chief Minister — the Chief Minister can advise any name from the names discussed with the Governor of the State for the appointment of Upalokayukta under the Act. The Chief Minister is legally obliged to consult the Chief Justice of the High Court and other four consultees, which is a mandatory requirement.”
He said, “If the Chief Minister proposes to suggest or advise any name from the source earmarked in the statute, that must also be made available to the consultees so that they can also express their views on the name, or names, suggested by the Chief Minister. Consultees can express their honest and free opinion about the names suggested by the other consultees, including the Chief Justice or the Chief Minister. After due deliberations and making a meaningful consultation, the Chief Minister of the State is free to advise a name which has come up for consideration among the consultees to the Governor of the State. The advice tendered by the Chief Minister will have primacy and not that of the consultees including the Chief Justice of the High Court. The Governor cannot appoint a person who does not fall in that source and satisfies the other eligibility criteria…”