# STATE OF GUJARAT & ANR v. HON'BLE MR. JUSTICE R. A. MEHTA (RETD) & ORS

- **Citation:** [2013] 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2013-01-02
- **Case number:** Civil Appeal Nos. 8814-8815 of 2012
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-anr-v-hon-ble-mr-justice-r-a-mehta-retd-ors-28764
- **Pages:** 71

## Headnote

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
A
B
c
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
E
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 F
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 G
objections with respect to appointment of respondent as
Lokayukta.
s.3 - Appointment of Lokayukta - Held: Chief Justice
1
H
2
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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.
8
s. 3 -
Delay in appointment of Lokayukta -
Held:
Statutory provisions make it mandatory on the part of the State
to ensure that the office of Lokayukta is filled up without any
delay.
c
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
0
exercise of power by him, must only be upon the aid and
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
E
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,
F 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
G 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
H objectively - There is no scope of judicial review so far as the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
3
MEHTA (RETD) & ORS ..
process of decision making is concerned - Judicial review -
A
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
B
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.
C
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.
D
The appointment of respondent no. 1 as Lokayukta
was challenged by the State Government in a writ petition
E
before the High Court. There being

## Text

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[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
A
B
c
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
E
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 F
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 G
objections with respect to appointment of respondent as
Lokayukta.
s.3 - Appointment of Lokayukta - Held: Chief Justice
1
H
2
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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.
8
s. 3 -
Delay in appointment of Lokayukta -
Held:
Statutory provisions make it mandatory on the part of the State
to ensure that the office of Lokayukta is filled up without any
delay.
c
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
0
exercise of power by him, must only be upon the aid and
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
E
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,
F 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
G 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
H objectively - There is no scope of judicial review so far as the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
3
MEHTA (RETD) & ORS ..
process of decision making is concerned - Judicial review -
A
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
B
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.
C
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.
D
The appointment of respondent no. 1 as Lokayukta
was challenged by the State Government in a writ petition
E
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.
F
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; G
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 H
4
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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
B 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
c with the Chief Minister which tantamounted to
resounding strictures, and the same required to be
expunged.
Dismissing the appeals, the Court
D
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
E the appointment of the Lokayukta. However, a twoJudges 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.
F [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
G 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
H infirmity or error that warrants a review of such earlier
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
5
MEHTA (RETD) & ORS.
judgments. In the instant case, there is no such A
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]
The Keshav Mills Co. Ltd., Pet/ad v. The Commissioner 8
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 C
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
E
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
F
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 G
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
H
6
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A (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)
B 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
C 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
D 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/
E 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
F 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
G & 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.
H
2.3. The doctrine of purposive construction may be
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
7
MEHTA (RETD) & ORS.
taken recourse to for the purpose of giving full effect to
A
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 B
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.
C
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] [65B-C-F-G; 66-E]
M. Pentiah & Ors. v. Mudda/a Veeramallappa & Ors.
D
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
E
& 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.
F
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
G
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
H
8
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A 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
B 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
C 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
0 in light of the meaning given by the courts to the word
'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)
E 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
F 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.
G 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.
H However, such consultation with the Leader of
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
9
MEHTA (RETD) & ORS.
Opposition also stands dispensed with, if the Assembly
A
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
C
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 D
respondent no.1 ineligible/ disqualified or unsuitable for
appointment to the post of Lokayukta. [para 45, 46) [56D-G; 57-C-D]
2.7. As t:-i<.? ~hief Justice has primacy of opinion in
E
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
F
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 G
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
H
10
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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)
B [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
C & 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
D 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
E 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
F 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
G 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
H debet esse judex in causa propria sua. It applies only when
. STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
11
MEHTA (RETD) & ORS.
the interest attributed to an individual is such, so as to
A
tempt him to make a decision in favour of, or to further,
his own cause. While considerf ng 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]
B
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 =
C
(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
D
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]
E
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
F
12
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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
8
4.1. Under the scheme of our Constitution, the
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
C 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
D 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
E 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
F 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]
G
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 =
H AIR 1996 SC 1810; Pu Myllai Hlychho & Ors. v. State of
Mizoram & Ors., 2005 (1) SCR 279 = AIR 2005 SC 1537;
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
13
MEHTA (RETD) & ORS.
Ram Nagina Singh & Ors. v. S. V. Sohni & Ors., AIR 1976 Pat A
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 C
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. D
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 371A(2)(f), VI Schedule, Para 9(2) (and VI Schedule, Para
E
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.
F
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 G
& 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 H
14
SUPREME COURT REPORTS
[2013) 1 S.C.R.
A 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
8 Governor does not act as a statutory authority, but as the
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
C 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
D 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]
E
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.
F & 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
G 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
H attitude is not in conformity, or in consonance with the
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
15
MEHTA (RETD) & ORS.
democratic set up of government envisaged in our A
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
B
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
C
overlooked, for cogent reasons. [para 7 4) [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,
D
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
E
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
F
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
G
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
H
16
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A 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
B 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,
C i.e. Chief Minister. [para 73) [67-G; 68-B-C; 69-G-H; 70-A]
D
Case Law Reference:
(2011) 4 SCALE 252
. -:
1965 SCR 908
JT 2012 (10) SC 422
1978 (1) SCR 423
1987 (1) SCR 136
E
2003 (1) SCR 593
referred to
relied on
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
F
2006 (1) SCR 261
AIR 2008 SC 2936
2010 (6) SCR 857
1970 (2) SCR 666
2009 (7) SCR 668
2010 (6) SCR 857
G
1970 (2) SCR 666
H
2009 (7) SCR 668
1996 (3) SCR 474
referred to
2004 (6) Suppl. SCR 1065
referred to
para 5
para 6
para 9
para 9
para 9
para 9
para 9
para 9
para 9
para 9
para 9
para 9
para 10
para 11
para 11
para 11
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 17 .
MEHTA (RETD) & ORS.
!
2011 (4) SCR 445
referred to
para 13
A
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
B
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
c
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
D
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
E
1997 (1) SCR 138
referred to
para 25
2011 (12) SCR 84
referred to
para 25
AIR 1980 SC 2147
referred to
para 25
F
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
G
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
H
18
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
2000 (5) Suppl. SCR 200
referred to
para 34
2012 (2) SCR 433
referred to
para 34
2011 SCR 540
referred to
para 34
B
1963 SCR 774
referred to
para 35
AIR 1970 SC 1002
referred to
para 35
1980 (3) SCR 1159
referred to
para 35
c
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
D
2012 (10) JT 446
referred to
para 62
2012 (3) SCR 52
referred to
para 62
AIR 1979 SC 478
referred to
para 64
E
(1940) 3 All E.R. 549
referred to
para 66
1926 AC 37
referred to
para 66
1961 SCR 295
referred to
para 67
F
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
G
2010 (10) SCR 779
referred to
para 67
1987 (1) SCR 1
referred to
para 73
1990 (2) SCR 110
referred to
para 73
H
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
19
MEHTA (RETD) & ORS.
(1999) 9 sec 211
2001 (1) SCR 959
referred to
referred to
referred to
referred to
para 73
A
2004 (5) Suppl. SCR 129
2012 (6) sec 491
para 73
para 73
para 73
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
8814-8815 of 2012 etc.
B
From the Judgment & Order dated 10.10.2011 and
18.01.2012 of the Hig~ Court of Gujarat at Ahmedabad in c
Special Civil Application No. 12632 of 2011.
WITH
SLP (C) Nos.· 2625-2626 & 2687-88 of 2012
D
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.
E
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
F
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.
G
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
H
20
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A of Gujarat at Ahmedabad in Special Civil Application No.
12632 of 2011, dated 10.10.2011 and 18.1.2012.
B
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
C 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
D 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
E 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,
F 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.
G
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
H post of Lokayukta.
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A. 21
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.] ·
D. The Chief Minister, also wrote a letter dated 8.2.2010,
A
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
B
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,
C
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.
D
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
E
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
F
the names as recommended by the Chief Justice, and vide
G
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
22
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
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
B 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
c 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
D 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
E 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
F 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.
G
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
H expressed his willingness to accept his appointment to the post
STATE OF GUJARAT v. HON'BLE MR. JUSTICE R. A.
23
MEHTA (RETD) & ORS. [DR. B.S. CHAUHAN, J.]
of Lokayukta, if the same was offered to him, and in this regard,
A
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
C
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
D ·
Justice R.A.