R.K Patra, J.:— This petition made under Articles 226 and 227 of the Constitution of India is by way of public interest litigation. The petitioner who claims to be the Editor of a daily newspaper ‘Bartamana Samachar’ seeks to assail the validity of notification dated 25-11-1996 (Annexure-4) of the Government of Orissa in the department of Public Grievances and Pension Administration appointing Justice K.P Mohapatra (retired) opposite party No. 4 as Lokpal, Orissa.

2. Shri Misra, learned counsel for the petitioner, has made a two-pronged salvo to the appointment of Lokpal which are as follows:

(i) Under Section 3(1) of the Orissa Lokpal and Lokayuktas Act, 1995 (hereinafter referred to as ‘the Act’) it is the Governor who is to appoint the Lokpal after following the due procedure laid down for the purpose, but in the instant case, it was the Chief Minister who initiated the process ultimately leading to the issuance of the impugned notification. Therefore, there was clear breach of the statutory requirement.

(ii) The appointment of opposite party No. 4 as Lokpal is vitiated because of non-fulfilment of the requirements of the proviso to Section 3 of the Act in the matter of consultation.

3. Shri G. Rath, learned Senior counsel appearing for opposite party No. 4, submitted that in our constitutional set-up, the Governor has to act on the aid and advice of the Council of Ministers and, as such, the Chief Minister rightly initiated the process and after obtaining orders from the Governor, the imupgned notification was made. Regarding consultation with the consultants, i.e, the Chief Justice and the Leader of Opposition, he submitted that there was due compliance of the provision of law. Shri J.M Mohanty, learned counsel appearing for the opposite party No. 3 who at the relevant time the Leader of Opposition supported the case of the petitioner.

4. Before examining the rival contentions, it would be profitable to look at the provision dealing with the appointment of Lokpal under the Act. The relevant provision is Section 3(1)(a) which is extracted hereunder:

“3. Appointment of Lokpal and Lokayuktas: (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall appoint a person to be known as the Lokpal and one or more persons to be known as the Lokayukta or Lokayuktas:

Provided that—

(a) the Lokpal shall be appointed after consultation with the Chief Justice of the High Court of Orissa and the Leader of the Opposition, if there is any;

……………………”

From bare perusal of the aforesaid provision, it is evident that before the Governor appoints a person as Lokpal, he is to consult the Chief Justice of the High Court of Orissa and the Leader of the Opposition.

5. Contention No. (1):

Or constitution envisages a Parliamentary system of Government both at the Union and Stae levels. The President is the Constitutional or formal head of the Executive at the Union and the Governor is the Constitutional or formal head of the Executive at the State level. We need not deal with the Constitutional provisions dealing with the powers and functions of the President as they are not relevant for our purpose. The Governor exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers except in areas where the Governor is required by or under the Constitution to exercise his functions in his discretion. Wherever the Constitution requires the satisfaction of the Governor for the exercise of any power or function, the satisfaction required by the Constitution is not his personal satisfaction but the satisfaction of his Council of Ministers on whose aid and advice he exercises all his powers and functions, except in the tiny strips covered by Articles 163(2), 371(2), 371A (1)(b), 371C, 371F(g) and reporting to the President under Article 356(1) and reserving a bill for consideration of President under Article 200(1) (See Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 — Paras 48, 54 to 56).

In view of what has been stated above, we have no hesitation to hold that under Section 3(1) of the Act, the Governor while appointing a person as Lokpal is to act on the aid and advice of the Council of Ministers with the Chief Minister at the head. There is no question of exercising power thereunder in his personal capacity or discretion.

Article 166 of the Constitution deals with the conduct of business of the Government of a State. Clause (1) thereof prescribes that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, Sub-clause (3) thereof states that for the more convenient transaction of the business of the Government of the State, there may be allocation among the Ministers of the said business. In exercise of this power the Governor of Orissa has made a set of rules called ‘Orissa Government Rules of Business’. The Chief Minister has accordingly as per the Rules of Business initiated the process of appointment of Lokpal by writing letters on 8-10-1996 to the Chief Justice of the Orissa High Court (Annexure-A) and Leader of the Opposition (Annexure-2 and/or Annexure-B). The relevant file of the Government produced before us by the learned Additional Government Advocate shows that after obtaining the views from the Chief Justice and the Leader of Opposition, the Chief Minister recommended to the Governor to appoint the opposite party No. 4 as Lokpal. On 20-11-1996 the Governor accepted the proposal. As a consequence, the impugned notification dated 26-11-1996 at Annexure-4 was issued which is quoted hereunder:

NOTIFICATION

Bhubaneswar the 26th November, 1996.

No. 10146.PG & PA. In exercise of the powers conferred under Section 3(1) of the Orissa Lokpal and Lokayuktas Act, 1995, the Governor of Orissa is hereby pleased to appoint Shri Justice K.P Mohapatra (Retd.) as Lokpal with effect from the date he is sworn in as such.

BY ORDER OF THE GOVERNOR

Sd-Rajalakshmi

Commissioner-cum-Secretary

to Government.”

It may be seen from Annexure-4 that the appointment was made by the order of the Governor in terms of Constitutional provisions. For the reasons mentioned above, we do not find any merit in the first contention.

6. Contention No. (ii):

Let us examine whether the appointment of opposite party No. 4 as Lokpal was made in accordance with the procedure laid down under Section 3(1)(a) of the Act.

Before making further probe. It would be relevant to deal with the correspondence rested on the appointment of the Lokpal. The Chief Minister in his letter No. 83.CMC dated 8-10-1996 at Annexure-A wrote to the Chief Justice of Orissa High Court which is extracted hereunder:

“My dear Chief Justice,

Section 3(1) of the Lokpal and Lokayukta Act envisages appointment of Lokpal in consultation with the Chief Justice of Orissa High Court and the Leader of the Opposition, if any. The State Government are considering the following persons for this office.

1. Shri Justice B.K Behera (Retd. Judge, Orissa High Court)

2. Shri Justice K.P Mohapatra (Retd. Judge of Orissa High court)

3. Shri Justice D.M patnaik (Sitting Judge of Orissa High Court)

I shall be grateful if you could kindly convey your considered views in the matter early.

With warm personal regards.

Yours sincerely,

(J.B Patnaik)”

In letter No. 82.CMC dated 8-10-1996 at Annexure-2 and/or Annexure-B the Chief Minister wrote to the Leader of the Opposition whose English version reads as follows:

“Dear Ashok Babu,

The State Government are considering the following Justices for the appointment of Lokpal. There is provision in Section 3(1) of the Lokpal and Lokayuktas Act for consultation with the Chief Justice and with you.

Therefore, I request you kindly to convey your considered views.

1. Justice Shri B.K Behera, Retd. Judge of Orissa High Court.

2. Justice Shri K.P Mohapatra, Retd. Judge of Orissa High Court.

3. Justice Shri D.M Patnaik, Sitting Judge of Orissa High Court.

With best wishes.

Yours sincerely,

(J.B Patnaik)”

The Chief Justice in response to Annexure-A in his confidential letter dated 10-10-1996 (Annexure-C) replied as follows:

My dear Chief Minister,

Kindly refer to your D.D letter No. 83.CMC dated 8-10-96 which was received by me today.

I agree that Justice Shri K.P Mohapatra, a retired Judge of Orissa High Court, may be appointed as Lokpal for the State of Orissa under the provisions of the Lokpal Act.

With regards,

Yours sincerely,

(S.N Phukan)”

Similarly, the Leader of the Opposition in his letter No. 941.LOP dated 11-11-96 at Annexure-3 offered his views to the Chief Minister's letter No. 82.CMC dated 8-10-1996. Relevant portion of his reply reads as under:

“Dear Mr. Chief Minister,

……………………..

2. ………………………

3. While heartily welcoming Government decision to revive the Lokpal to work as a watch dog against corruption in public life at high places, I would only wish that the person to be appointed as Lokpal must, inter alia, be a reputed Judicial personality with high integrity, professional maturity and courage of conviction.

4. To my knowledge, Sri Sarat Chandra Mohapatra, who is presently woring as Chairman of the State Administrative Tribunal could be one with such indispensable and essential qualities. You may perhaps like to consider him for the august office of the Lokpal to start with this important experiment do-novo, I am confident, the Government decision on this score shall be amply justified by future.

With were regards,

Yours sincerely,

11-11-96

(ASHOK KUMAR DAS)”

6A. On a close and conjoint reading of the letters of correspondents, it would appear that the Chief Minister suggested three names including the name of opposite party No. 4 and the Chief Justice in his reply at Annexure-C ‘agreed’ that he (opposite party No. 4) be appointed as Lokpal. The Leader of the Opposition in his reply at Annexure-3, however, suggested that a person to be appointed as Lokpal must, inter alia, be “a reputed judicial personality with high integrity, professional maturity and courage of conviction” and suggested the name of Justice S.C Mohapatra (who was then the Chairman of the Orissa Administrative Tribunal) to be one such person “having indispensable and essential qualities to be appointed as Lokpal”. The Chief Minister, however, did not bring to the notice of the Chief Justice by way of further consultation with regard to the name suggested by the Leader of the Opposition.

7. The contention of the counsel for the petitioner is that the Chief Minister having not further consulted with the Chief Justice with regard to the name suggested by the Leader of the Opposition, there was no full and effective consultation amongst the three dignitaries. Shri G. Rath, learned senior counsel appearing for opposite party No. 4, on the other hand, strenuously contended that the Leader of the Opposition did not express any adverse view with regard to the three names suggested by the Chief Minister and after taking into consideration the name mooted by the Leader of the Opposition, the Chief Minister recommended opposite party No. 4 for being appointed as Lokpal and the Governor having accepted the said recommendation, there is full compliance of the proviso to Section 3(1)(a) of the Act.

8. The meaning and purport of the expression ‘consultation’ came up for decision before the Supreme Court in many cases including the second Judges' case, i.e, Supreme Court Advocates'-on-Record Association v. Union of India, AIR 1994 SC 268 and the Presidential Reference case, AIR 1999 SC 1. We need not delve into the gamut of consultation revolving round the appointment/transfer of High Court Judges which were being dealt with by their Lordships in the aforesaid cases.

Let us know the meaning of the word ‘consultation’ as given in different dictionaries. In Shorter Oxford English Dictionary, the meaning of the word ‘consultation’ is as follows:

“Consultation: 1. The action of consulting or taking counsel together; deliberation, conference; 2, a conference in which the parties, e.g lawyers or medical practitioners consult and deliberate, 3. The action of consulting……………”

In Webster's Encyclopaedic Unabridged Dictionary of the English Language, the meaning of consultation is given thus:

“Consultation: 1. The act of consulting; conference, 2, a meeting for deliberation, discussion, or decision…………..”

Black’ Law Dictionary defines the expression as under:

“Consultation: Act of consulting or conferring; e.g patient with doctor; client with lawyer. Deliberation of persons on some subject. A conference between the counsel engaged in a case, to discuss its questions or arrange the method of conducting it.”

Stroud's Law Lexicon gives the following definition:

“Consultation: (New Towns Act, 1946 (9 and 10) Geo 6, c. 68), S. 1(1), ‘consultation with any local authorities’. ‘Consultation means that on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and on the other hand, a sufficient opportunity must be given to the local authority to tender advice” per Blucknil, L.J in Rollo v. Minister of Town and Country Planning, (1948) 1 All ER 13 (CA); see also Fletcher v. Minister of Town and Country Planning, (1947) 2 All ER 496.”

In Fletcher v. Minister of Town Planning, (1947) 2 All ER 496, Morris, J. of King's Bench Division held as follows:

“The word ‘consultation’ is one that is in general use and that is well understood. No useful purpose would, in my view, be served by formulating words of definition. Nor would it be appropriate to seek to lay down the manner in which the consultation must take place. The Act does not prescribe any particular form of consultation. If a complaint is made of failure to consult, it will be for the Court to examine the facts and circumstances of the particular case and to decide whether consultation was, in fact, held. Consultation may often be a somewhat continuous process and the happenings at one meeting may form the background of a later one”.

(Emphasis supplied)

In Chandramouleshwar Prasad v. Patna High Court, AIR 1970 SC 370, a Five Judges Bench of the Supreme court while interpreting the word ‘consultation’ as occurring in Article 233 of the Constitution observed as follows (para 7):

“…………..It was said that the High Court had given the Government its views in the matter; the Government was posted with all the facts and there was consultation sufficient for the purpose of Article 233. We cannot accept this. Consultation or deliberation is not complete or 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 his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation.”

9. Exercise of the power of appointment by the Governor under Section 3(1) of the Act is conditioned by his consultation with the Chief Justice of the High Court and the Leader of the Opposition, that is to say, he can only appoint a person to the office of Lokpal in consultation with the aforesaid two designated dignitaries. The duty to consult is so integrated with the exercise of the power that it can be done only in consultation with the two consultants. Consultation though does not mean encurrance or consent, it is not an empty formality, as envisaged under the provision. No doubt, the final decision is with the Consultor (i.e the Governor) but before he reaches a decision accepting one name and rejecting other names floated for the purpose, there should be a real, full and effective consultation amongst himself, the Chief Justice and the Leader of the Opposition.

10. Now coming to the facts, it may be seen that there was no consultation with the Chief Justice with regard to the name suggested by the Leader of the Opposition. By the time the Leader of the Opposition suggested the name, no final decision had yet been taken. Therefore, the consultation among the consultants was in an inchoate stage. After receiving the suggestion from the Leader of the Opposition if the Chief Minister would have consulted the Chief Justice, he would have given his views on the said name. That having not been done, the consultation as contemplated under Section 3(1)(a) of the Act had not taken its full course. This has definitely vitiated the final decision.

For the reasons aforesaid, the appointment of opposite party No. 4 cannot be sustained in law and the impugned notification at Annexure-4 is hereby quashed. The writ petition is allowed.

11. Before parting with the case, we are constrained to observe that this case ought to have been listed for hearing in January, 1997 as was directed by order dated 26-12-1996. Somehow the case suffered due to law's delay. In the meantime, opposite party No. 4 as Lokpal might have disposed of many matters referred to him under the provisions of the Act. As his appointment has not been voided, orders, if any, passed by him under the Act are to be saved under the defacto doctrine founded upon public policy and justice. We order accordingly.

Petition allowed.