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Article 226 in The Constitution Of India 1949
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Andhra High Court
Government Of Andhra Pradesh vs A.P. Lokayukta And Upa-Lokayukta ... on 28 April, 2003
Equivalent citations: 2003 (3) ALD 732, 2003 (4) ALT 68
Author: D Gupta
Bench: D Gupta, A G Reddy



JUDGMENT
 

Devinder Gupta, C.J. 

1. Government of Andhra Pradesh has filed this appeal challenging the interim order dated 19.2.2003 passed by learned Single Judge of this Court in a suo motu taken up Writ Petition No. 3025 of 2003. While hearing the Writ Appeal, we also heard finally the Writ Petition; therefore, this order disposes of both the Appeal and the Writ Petition.

2. While issuing notice before admission in the Writ Petition calling upon the respondents to explain under what provisions of law and under what circumstances, the Chief Secretary had passed the order in G.O. Ms. No. 293 General Administration (SC.E) Department dated 2.7.2002 equating the Office of Lokayukta with the Office of Chief Justice without amending the provisions of A.P. Lokayukta and Upa-Lokayukta Act, 1983 (hereinafter referred to as "the Act"), the learned Single Judge also passed an order suspending that part of the G.O. by which it is assumed that the Office of Lokayukta had been equated with the Office of Chief Justice of High Court.

3. When the Writ Appeal came up for admission before Division Bench on 4.3.2003, while admitting the appeal, interim order was passed suspending the operation of the order passed by the learned Single Judge.

4. We have heard the learned Advocate General appearing for the Government of Andhra Pradesh, Sri E. Manohar, learned Senior Counsel appearing for respondent No. 2 and Sri Nooty Rammohan Rao, learned Advocate who was appointed as amicus curiae to assist the Court.

5. A learned Single Judge directed the Registry to register a Suo Motu Writ Petition against the Government of Andhra Pradesh observing:

Smt. Sathi Nair, Chief Secretary to the Government of Andhra Pradesh, Hyderabad, vide Memo No. 982/SC.E/97-2 dated 5.5.1997, as per the provisions of the Andhra Pradesh Lokayukta and Upa-Lokayukta Act, 1983, has equated Honourable Lokayukta and Upa-Lokayukta to that of the Honourable Chief Justice and Judges of the High Court and accordingly directed all the District Collectors to extend all the courtesies and facilities and to make necessary arrangements for accommodation, transport and security, etc., to the Honourable Lokayukta and Upa-Lokayukta, whenever the District Collectors receive their tour programmes from the Registrar, Institution of Andhra Pradesh Lokayukta and Upa-Lokayukta, Hyderabad. The Registrar, Lokayukta and Upa-Lokayukta was also requested to send tour programmes of the Honourable Lokayukta and Upa- Lokayukta to the District Collectors to take further action. The above memo was followed by another Memo No. 982/SC.E/ 2002-1 dated 7.11.2002 under which Smt. Sathi Nair, Chief Secretary to Government of Andhra Pradesh, reiterated the instructions issued under the Memo dated 5.5.1997 and directing the District Collectors to treat the Honourable Lokayukta and Upa- Lokayukta as that of the Chief Justice and Judges of the High Court and, therefore, to extend all the courtesies and facilities and to make necessary arrangements for accommodation, transport and security, etc., to the Honourable Lokayukta and Upa-Lokayukta, whenever the District Collectors receive their tour programmes from the Registrar, Institution of Andhra Pradesh Lokayukta and Upa-Lokayukta, Hyderabad and also directed to circulate the instructions to all the officers dealing with the protocol duties.

(a) A reading of the above circulars, makes it clear that as per the provisions of the Honourable Lokayukta and Upa-Lokayukta Act, 1983, the Chief Secretary to Government has equated the post of Lokayukta and Upa-Lokayukta to that of the Honourable Chief Justice and Honourable Judges of the High Court and directed the District Collectors and other officers attending protocol duties to extend all facilities that are enjoyed by the Honourable Chief Justice and Honourable Judges, whenever they visit districts. The word "institution" used by the Chief Secretary for Lokayukta and Upa-Lokayukta itself shows that it is not a "Court". That apart, as per the provisions of the Lokayukta and Upa-Lokayukta Act, 1983, the functions of the Lokayukta and Upa-Lokayukta are to investigate the administrative actions taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh, including any omission and commission in connection with or arising out of such action, in certain cases and for matters connected therewith. Therefore, it is an Investigating Authority of administrative actions taken by or on behalf of the State of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh.

(b) That apart, as per the provisions of the A.P. Lokayukta and Upa-Lokayukta Act, 1983, for the purpose of conducting investigation in accordance with the provisions of the Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokayukta and one or more persons to be known as the Upa-Lokayukta or Upa-Lokayuktas. The qualifications prescribed for the post of Lokayukta shall be a Judge or retired Chief Justice of a High Court, who shall be appointed after consultation with the Chief Justice of the High Court concerned and the Upa-Lokayukta shall be appointed from amongst the District Judges of Grade-I, out of a panel of five names forwarded by the Chief Justice of the High Court. Thus, these posts are not held by the Honourable Chief Justice of High Court or the Honourable Judges.

(c) Further, the retired Chief Justice or the Judges who are appointed as Lokayukta, will hold the office during the term as per warrant issued by the Governor and he can be removed from his office by the Governor on the ground of misbehaviour or incapacity and on no other ground. Section 7 of the Act deals with the matters under which Lokayukta and Upa-Lokayukta may investigate into. Section 8 thereof deals with the matters not subject to investigation by Lokayukta or Upa-Lokayukta whereas Section 9 deals with making of the complaints with regard to the circumstances and thereafter procedure for investigation. Section 12 of the Act, which is worth considering herein, deals with the reports of the Lokayukta or Upa-Lokayukta; which says that if after investigation of any allegation, the Lokayukta is satisfied that such allegation is substantiated either wholly or partly, he shall by a report in writing, communicate his findings and recommendations along with the relevant documents, material or other evidence to the Competent Authority; thereafter the Competent Authority shall examine the report forwarded to it and without any further inquiry take action on the basis of the recommendations and intimate within three months of the date of receipt of the report, the Lokayukta, or as the case may be, to Upa-Lokayukta, the action taken or proposed to be taken on the basis of the report.

(d) A reading of these provisions makes it clear that the Lokayukta and Upa-Lokayukta have no power to impose any punishment on the delinquent, after investigation into the charges levelled against such delinquent. Thus it is only a fact finding body, which has to make recommendations to the Competent Authority after investigation and it is for the Competent Authority alone whether to take action or not to take any action on such report of the Lokayukta or Upa- Lokayukta.

(e) Whereas, the Judges of the High Court are appointed by His Excellency the President of India under Article 217 of the Constitution of India and the salaries etc., are contemplated under Article 221 of the Constitution. That apart the High Court is a Court of Record and it is not a Subordinate Court to the Apex Court. The removal of the Honourable Chief Justice and Honourable Judges of the High Courts is as per the procedure contemplated under the Constitution. Therefore, it appears the Chief Secretary to the Government has misconstrued the provisions of A.P. Lokayukta and Upa-Lokayukta Act, 1983 in equating them with that of the Honourable Chief Justice and other Judges of the High Court.

When such is the legal position on the issue, the Chief Secretary to the Government is directed to file affidavit setting out under what circumstances the post of Lokayukta and Upa-Lokayukta are being treated as equal to that of the Honourable Chief Justice and other Judges of the High Court.

It is also pertinent to note that some of the Judicial/Administrative Members appointed to the Andhra Pradesh Administrative Tribunal, A.P. Human Rights Commissions and Upa-Lokayukta, who were directed to discharge the functions of Vice-Chairman of the Tribunal or as Lokayukta in their absence, as the case may be, can they be called as "Justice". Therefore, the Chief Secretary to the Government of Andhra Pradesh is also directed to make it clear under what circumstances and under which authority, they are proclaiming themselves as "Justice".

The Chief Secretary is directed to furnish all the preceding circular instructions and Government Orders connected to the subject matter herein, for perusal of this Court along with the counter- affidavit.

6. After registration of the Writ Petition, it was placed before the Chief Justice who directed that suo motu taken up Writ Petition be placed before the same learned Judge who directed registration of the Writ Petition. This is how the interim order was passed, which is now under challenge in the appeal.

7. At the outset we may observe that taking suo motu cognizance cannot enlarge the scope of the powers, which can be exercised by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India. Article 226 empowers the High Court to issue high prerogative writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari (a) for the enforcement of any of the rights conferred by Part III of the Constitution and (b) for any other purpose. Under the first part, a writ may be issued under Article 226 only after a decision that the aggrieved party has a fundamental right and that it has been infringed. Similarly under the second part, it may be issued only after a finding that the aggrieved party has a legal right which entitles him to any of the aforesaid writs and that such right has been infringed. Article 226 is couched in the widest possible terms and confers on all High Courts very wide powers in the matter of issuing writs but the power must be exercised on sound judicial principles. In exercise of its jurisdiction, the Writ Court will not interfere with any administrative policy or other administrative instructions not having any statutory force and will not interfere with legislative or executive policies, so long as no provision of the Constitution is violated by the action taken.

8. The Act (Act No. 11 of 1983) was passed by the State Legislature, which received the assent of the President on 25.8.1983, with a view to make provision for appointment and functions of Lokayukta and Upa-Lokayukta for the investigation of administrative action taken by or on behalf of the Government of Andhra Pradesh or certain Local and Public Authorities in the State of Andhra Pradesh including any omission and commission in connection with or arising out of such action in certain cases and for matters connected therewith.

9. Lokayukta and Upa-Lokayukta are appointed under Section 3 of the Act by the Governor. Lokayukta is appointed after consultation with the Chief Justice of the High Court and Upa Lokayukta is appointed out of a panel of five names forwarded by the Chief Justice. One of the necessary qualifications for being appointed as Lokayukta is that he shall be a Judge or a retired Chief Justice of a High Court, while Upa-Lokayukta is appointed from among the District Judges Grade-I. Section 5 of the Act lays down the term of office and other conditions of service of Lokayukta and Upa-Lokayukta. Sub-section (4) of Section 5 says that salary payable to the Lokayukta or Upa-Lokayukta in respect of time spent on actual service shall respectively be the same as that of the Chief Justice or Judge of the High Court of Andhra Pradesh. Sub-section (5) of Section 5 says that the allowances and pension payable to and other conditions of service of the Lokayukta or Upa-Lokayukta shall respectively be the same as those of the Chief Justice or a Judge of the High Court of Andhra Pradesh. Thus, Section 5 makes it clear that pay, allowances and other conditions of service of Lokayukta or Upa-Lokayukta shall respectively be the same as that of Chief Justice of High Court of Andhra Pradesh or a Judge of the High Court of Andhra Pradesh. At this stage, it may be noticed that the Joint Select Committee constituted after the Andhra Pradesh Lokayukta and Upa-Lokayukta Bill 1981 was presented in the State Legislature, in its report clarified that Lokayukta would enjoy the status of Chief Justice of the High Court and the Upa-Lokayukta would have the status of a High Court Judge. In view of the report of the Joint Select Committee, clauses were drafted accordingly. This is how the Act was passed which received the assent of the President.

10. The Act confers on Lokayukta certain onerous duties while dealing with complaints relating to allegations in respect of various matters of administrative actions taken by or on behalf of the Government of Andhra Pradesh or certain Local or Public Authorities in the State. The nature of duties being such, the Office of Lokayukta is expected to be totally independent uninfluenced by any outside agency and for that purpose Section 4 of the Act clarifies that Lokayukta or Upa- Lokayukta shall not hold any other Office and shall not be connected with any political party or carry on any business or practice or any profession.

11. Table of Precedence is issued by Government of India and respective State Governments so as to observe protocol at all State and Ceremonial Functions, which are strictly formal in nature. Considering the stature of Lokayukta and the spirit of the provisions of the Act, the Government of Andhra Pradesh reviewed Table of Precedence by its order dated 2.7.1988 to make it in consonance with the Table of Precedence issued by the Government of India. In the Table of Precedence, at S.No. 14 three dignitaries are bracketed, namely, (1) Chairman and Speakers of State Legislatures within their respective States; (2) Chief Justices of High Courts within their respective jurisdiction and (3) Leader of Opposition, A.P. Legislative Assembly, Lokayukta for State of Andhra Pradesh.

12. In consonance with the Table of Precedence, Memo No. 982/SC.E/97-2 dated 5.5.1997 was issued by the Government of Andhra Pradesh clarifying that as per the provisions of the Act, the status of Lokayukta and Upa-Lokayukta is the same as Chief Justice of High Court and Judge of High Court respectively and all the Collectors were informed to extend due courtesies and facilities and also make necessary arrangements for accommodation, transport and security etc., to the Lokayukta and Upa-Lokayukta of Andhra Pradesh whenever the Collectors receive their tour programmes from the Registrar, Institution of Andhra Pradesh Lokayukta and Upa-Lokayukta.

13. The Order of Precedence issued by the Government is purely an administrative measure to ensure that the said order is observed at all State and ceremonial functions, which are strictly formal in nature. In our considered view, such Table of Precedence does not in any manner affect the legal status of any authority nor it denudes the authority. In case the Act makes a provision for payment of salary to Lokayukta and Upa-Lokayukta as that of Chief Justice and Judge of High Court of Andhra Pradesh respectively or that the allowances and pension, payable to and other conditions of service shall be similar as those of Chief Justice and Judge of High Court of Andhra Pradesh, no fault can be found with the said Table of Precedence which only recognised the status of Lokayukta and Upa-Lokayukta without denuding the status of the Office of Chief Justice of High Court of A. P. and Office of Judge of High Court of Andhra Pradesh.

14. We may also notice the fact that on 2.7.2002, G.O. Ms. No. 293 General Administration (SC.E) Department dated 2.7.2002 was issued notifying the appointment of Sri Justice R. Ramanujam, Judge of this Court as Lokayukta for the State of Andhra Pradesh. Notification states that the Governor of Andhra Pradesh in exercise of his powers under Sub-section (1) of Section 3 and Sub-section (1) of Section 5 of the Act has appointed Sri Justice R. Ramanujam, Judge of this Court to be the Lokayukta for a period of five years. The notification further mention that Sri Justice R. Ramanujam will be a full time Officer and will have status of Chief Justice of a High Court during his tenure as Lokayukta.

15. Narration of the aforementioned facts would thus clarify that G.O. Ms. No. 293 GA.(SC.E) Department dated 2.7.2002 notifying the appointment of Sri Justice Ramanujam as Lokayukta was issued in consonance with the provisions of the Act. When it had come to the notice of Government that there was some doubt still being expressed at some quarters, Memorandum No. 1532/SC.E/2002-l dated 7.11.2002 was issued reiterating the instructions issued in the earlier Memo, directing strict compliance thereof by all the District Collectors and to extend all courtesies and facilities and also to make necessary arrangements for accommodation, transport and security etc., to Lokayukta in consonance with his status. Thus it was strictly in consonance with the provisions of the Act that Lokayukta has been equated with Chief Justice of High Court of Andhra Pradesh and Upa-Lokayukta as of Judge, High Court of Andhra Pradesh and the Table of Precedence also reiterate the same that only the status of the Chief Justice of the High Court of Andhra Pradesh and status of Judge of High Court of Andhra Pradesh has been conferred on Lokayukta and Upa-Lokayukta respectively for the limited purpose aforementioned.

16. Learned Single Judge while taking suo motu notice of the two memos referred to in his order appears to have been swayed by different modes of appointment of Chief Justice of High Court and Judges of High Court and of Lokayukta and Upa-Lokayukta. Competence of the State Legislature to pass legislation and to fix pay and other emoluments of Lokayukta and Upa- Lokayukta cannot be questioned since they are out of the realm of jurisdiction under Article 226. Once pay and other emoluments of Lokayukta and Upa-Lokayukta were fixed, to be at par with those of the Chief Justice of High Court of Andhra Pradesh and Judge of High Court of Andhra Pradesh respectively, it cannot be said that the Government had no authority or power to review or amend its Order of Precedence bracketing Lokayukta with Chief Justice of High Court of Andhra Pradesh or Upa-Lokayukta with the Judge of the High Court of Andhra Pradesh. Neither the Act nor the memos or Table of Precedence has conferred on Lokayukta or Upa-Lokayukta the powers or authority other than those, which are enumerated in the Act. The question of equivalence has no relevance. It is only the status that has relevance. Only the status of Chief Justice of High Court of Andhra Pradesh and Judge of High Court A.P. that has been conferred on Lokayukta and Upa-Lokayukta and that too for the limited purpose,

17. In the notice issued, the Chief Secretary was asked to explain the authority under which the Office of Lokayukta or Office of Upa-Lokayukta are being equated with that of Chief Justice of High Court of Andhra Pradesh and Judge of High Court of Andhra Pradesh respectively. No question was raised in the order taking suo motu notice about the authority under which Lokayukta and Upa-Lokayukta were appointed under the provisions of the Act. It being a matter of status only, for which purely administrative instructions have been issued limited for the purpose of following the precedence in all State and ceremonial functions, we are of the view that the 1st respondent has fully clarified the authority under which administrative instructions were issued.

18. There is a reference made in the order taking suo motu cognizance that some of the Judicial/Administrative Members appointed to the Andhra Pradesh Administrative Tribunal, Human Rights Committees and Upa-Lokayukta who were directed to discharge the functions of Vice-Chairman of the Tribunal or as Lokayukta in their absence, can be called as "Justice". Suffice it to say that the prefix "Justice" is used as a mark of respect accorded to the Office of Chief Justice of India, Judges of the Supreme Court, Chief Justices of the High Courts and Judges of the High Courts only. They alone are entitled to prefix the same while in Office or while out of Office. Such prefix is not used and cannot be used by a person other than the Judges appointed under the provisions of the Constitution by the President. Chairman of A.P. Administrative Tribunal in case he has held the Office of a Judge of High Court, and Lokayukta, in case he has held the Office of Chief Justice of High Court or the Office of a Judge of High Court, no doubt will be entitled to be addressed as Justice and will be entitled to use prefix as "Justice" but not the Upa-Lokayukta or other Judicial or Administrative Members of the Administrative Tribunals, who have not held the Office of a Judge of High Court. All members of the Tribunals, whether Judicial or Administrative, and Upa-Lokayukta who have not held the Office of a Judge of High Court cannot use the prefix "Justice" and cannot be addressed as "Justice" even when they are asked to perform the functions of Chairman or Vice Chairman of the Tribunal or of Lokayukta, in the absence of regular appointment to the Office of Chairman and Vice-Chairman of Tribunal or Office of Lokayukta. The clarifications we are making in our order are in consonance with the long practice and usage being followed under British Judicial System, which we have inherited.

19. We have noticed the authority under which the Chief Secretary had issued the two memos referred to in the impugned order passed by the learned Single Judge. The memos having lawfully been issued under valid authority, no further direction will be required to be issued in the Suo Motu Writ Petition except reiterating that the Memos having been issued under lawful authority by the Chief Secretary, the Writ Petition is liable to be closed.

20. For the reasons aforementioned, the Appeal is allowed. The impugned order passed by the learned Single Judge is set aside. The writ petition is closed. There shall be no order as to costs.