Setting aside the appointment of Justice (retd) Chandrashekaraiah as Upa-Lokayukta, a bench of Justice K.S. Radhakrishnan and Justice Madan B. Lokur in separate but concurring judgments held that the governor would appoint the Upa-Lokayukta on the advice of the chief minister.
"After due deliberations and making 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," Justice Radhakrishnan said in his judgment.
He held that the chief minister had erred in not consulting the chief justice before recommending Chandrashekaraiah's name for the post and thus the appointment violated Section 3(2)(b) of the Karnataka Lokayukta Act, 1984.
"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 Upa Lokayukta," he said.
"Since the chief justice of the high court was not consulted nor was the name deliberated upon before advising or appointing him as Upa Lokayukta, consequently, the appointment of Justice Chandrasekharaiah as Upa Lokayukta cannot stand in the eye of law and he has no authority to continue or hold the post of Upa Lokayukta of the state."
Addressing the contention that the practice followed in the appointment was same or similar to that was followed in the past, Justice Lokur said: "I am not inclined to accept either contention. Merely because a wrong has been committed several times in the past does not mean that it should be allowed to persist, otherwise it will never be corrected."
He said that the doctrine of prospective overruling had no application in the case of Justice Chandrasekharaiah since there is no overwhelming reason to save his appointment as the Upa-Lokayukta from attack.
As already held, Justice Lokur said that "in the absence of any consultation with the Chief Justice, the appointment of Justice Chandrashekharaiah as an Upa-lokayukta is void ab initio. However, this will not affect any other appointment already made since no such appointment is under challenge before us".
Justice Radhakrishnan also directed the Karnataka chief minister to take appropriate steps for appointment of Upa Lokayukta in accordance with law. "Since nothing adverse has been found against Justice Chandrasekharaiah, his name can still be considered for appointment to the post of Upa Lokayukta along with other names," he said.
Justice Chandrashekaraiah was appointed Jan 21, 2012, by a notification issued by the governor, but the decision was challenged by lawyers in the Karnataka High Court.
The high court, while holding that the appointment of Justice Chandrashekaraiah was illegal, had asserted the primacy of the opinion expressed by the chief justice in the appointment of Lokayukta and Upa Lokayuktas.
