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"Effective consultation has taken place", Karnataka HC dismisses challenge to process of appointing BS Patil as Upa Lokayukta

Rintu Mariam Biju

The Karnataka High Court recently dismissed a petition challenging the appointment of Justice BS Patil as Upa Lokayukta, stating that there was “effective consultation” with the other consultees in the appointment process. (Samaj Parivarthana Samudaya v. Government of Karnataka & ors.)

A Division Bench of Justices Ravi Malimath and MI Arun held,

"Four out of the five consultees have recommended the name of respondent No.4 [Justice BS Patil]. The recommendation of respondent No.4 was placed before the Hon’ble Chief Justice. The recommendation of Hon’ble Chief Justice was also placed for consideration before the four consultees. Therefore, each one of the consultees were aware of the name of respondent No.4...None of the consultees were kept in the dark of any of the names proposed by any of the consultees. This amounts to an effective consultation."

Karnataka High Court

The verdict was passed in a petition filed by NGO Samaj Parivarthana Samudaya, calling into question the appointment of former Karnataka High Court judge, Justice BS Patil as Upa Lokayukta.

Factual background and arguments raised by the parties

The petitioner claimed that Chief Minister BS Yeddyurappa committed an error by not consulting the Chief Justice of the High Court for the appointment of Justice BS Patil as Upa Lokayukta. The petitioner relied on correspondence between the Chief Minister and the Chief Justice to stake these claims.

On July 24, 2018, then Chief Minister HD Kumaraswamy had addressed a letter to former Chief Justice Dinesh Maheshwari asking him to suggest eligible persons for the office of Upa Lokayukta. In response, the Chief Justice had suggested the name of former Karnataka High Court judge, Justice AN Venugopalagouda as the most suitable candidate for the office.

In the meanwhile, Justice Abhay Shreeniwas Oka took charge as Karnataka Chief Justice in May 2019. On June 20, the Chief Minister asked the new Chief Justice for his recommendation. In a letter dated June 22, Justice Oka reiterated his predecessor’s pick and recommended Justice Venugopalagouda for appointment as Upa Lokayukta.

After a change in the state government, Chief Minister Yeddyurappa addressed a letter to Chief Justice Oka on November 12 last year, informing him that after consulting the other four authorities, it was decided that Justice Patil would be recommended as Upa Lokayukta.

This act on the then Chief Minister's part was challenged by the petitioners.

The main argument of the counsel for the petitioner, Advocate S Basavaraj, was that there was no effective consultation with the Chief Justice with regard to the appointment of Justice Patil as Upa-Lokayukta. He further argued that no material was placed before the Chief Justice with regard to BS Patil J's appointme

Advocate General Prabhuling Navadagi countered this argument by stating that the materials placed before the Court shows that there had been effective consultation. The letter dated November 14, 2019 is a letter addressed by the Chief Justice to the Chief Minister and it clearly indicates that the Chief Justice had acknowledged the letter addressed by the Chief Minister and that consultation was made to his satisfaction, Navadgi contended.

Senior Advocate Ashok Haranahalli, who appeared on behalf on Justice Patil, argued that the primacy for appointment of the Upa Lokayukta rests with the Chief Minister, who has to advise the Governor. He further argued that it is the Chief Minister who alone has to take the final call and shoulder the responsibility of correctly advising the Governor in the matter of appointment of the Upa Lokayukta.

What the High Court held

After relying on the judgment of Justice Chandrashekaraiah (retired) vs. Janekere c. Krishna and others, the Court held that each of the consultees should be aware of the names suggested by one another. None of the consultees can be kept in the dark with regard to the name suggested by the other. Each consultee is entitled to suggest his own name, the Court observed.

The Court further held that when a number of names have been suggested by each one of the consultees, it is the right of the Chief Minister to recommend the name of his choice. The Court referred to the Justice Chandrashekaraiah judgment, which reads as follows:

"Can the Chief Minister advise the Governor to appoint a person not recommended by any of the constitutional authorities? I see no reason why he cannot, as long as he consults them-the “consultation” being in the manner postulated above. The Chief Minister can recommend a completely different person, other than any of those recommended by any of the constitutional authorities as long as he does not keep them in the dark about the name of the candidate and there is a full and complete disclosure of all relevant facts."

Chandrashekaraiah judgment

However, the Court also said that the above could be done only if the names as suggested by all the consultees are made known to each and every other consultee.

With respect to the above decision, the Court opined that the facts in the present case are quite the opposite. In Patil J's case, it was observed that there was effective consultation, as all the consultees were aware of his name being suggested for the post.

On the contention that no material was placed before the Chief Justice with regard to BS Patil J's appointment, the Court held that it was unable to agree. The judgment reads,

"The argument of the petitioner stems from this letter. He contends that there is no material placed before the Hon’ble Chief Justice with regard to respondent No.4 that could enable the Hon’ble Chief Justice to take a decision. We are unable to accept such a reasoning. What is stated in the letter dated 14-11-2019 vide Annexure-F, is that there is no material to change the recommendation made earlier. The earlier recommendation made by the Hon’ble Chief Justice is that of Hon’ble Mr.Justice A.N.Venugopala Gowda. The recommendation made by the consultees is that of respondent No.4."

On the same point, the High Court concluded that whether there is any material or not to change the earlier recommendation, has no nexus with the recommendation made by the remaining four consultees.

The Court went on to add that there was absolutely no reference made by the Chief Justice pointing to an ineffective consultation. Therefore, it has to be inferred that the consultation was made to his satisfaction, the Court held.

On these grounds, the petition was dismissed by the High Court.

[Read the judgment here]

Upa Lokayukta Judgment.pdf
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