ORDER
Amar Dutt, J.
1. The petitioner seeks issuance of a writ in the nature of mandamus and/or any other appropriate writ, order or direction declaring the provisions of Section 25(2) of the Haryana Lokayukta Act, 2002 (hereinafter referred to as 'the 2002 Act') and Section 2(2) of the Haryana Lokayukta (Repeal) Ordinance, 1999 (hereinafter referred to as 'the 1999 Ordinance') ultra vires the Constitution of India and a further writ, order or direction to the respondents to pay compensation to the petitioner in accordance with the terms of the warrant of his appointment and/or the dictum of the Supreme Court in Sri Justice S.K. Ray v. State of Orissa, (2003)4 S.C.C. 21. He also prays for costs.
2. The factual matrix upon which the legal challenge is based is narrow and undisputed.
[2.1] The petitioner started his service career as a member of the State Judicial Service, Punjab. After reorganisation, he was allocated to Haryana and he became District & Sessions Judge in the year 1983. He was elevated as permanent Judge of the High Court of Punjab and Haryana on 20th of June, 1994 and on transfer to the Allahabad High Court, he assumed charge as a Judge of the said High Court on 21.7.1994.
[2.2] The Haryana Lokpal Act, 1997 (hereinafter referred to as 'the 1997 Act') was enacted with the object of providing for appointment and functioning of a Lokpal for enquiry and investigation into allegations and grievances against the public servants and matters connected therewith.
[2.3] While the petitioner was holding the office of the Judge, Allahabad High Court (Lucknow Bench), he received D.O. No. OSD/CS/98/716 dated 16.12,1998 Annexure P4 seeking the petitioner's consent for his appointment to the office of the Lokpal under the 1997 Act.
[2.4] The petitioner sent his response through letter dated 18.12.1998 incorporating therein 'his consent for appointment to the aforesaid office but with an express rider/condition to enter into an express contract under Article 310(2) of the Constitution of India to ensure his continuous and uninterrupted tenure'. According to the petitioner, the reasons for putting the aforesaid rider/condition was explained in the letter in the following terms:-
'All the same you may feel concerned to observe that of late there has been an all round deterioration in norms and values. The sad experience of former Chief Justice S.S. Sodhi with the change of Government in the sister State of Punjab is too recent to be forgotten. To avoid any such mishap, I would request you to ensure my continuous and uninterrupted tenure along with the consequent sanctions within the frame work of Article 310(2) of the Constitution of India.
It may be worthwhile to note that I have yet another about two years to go in my service as a High Court Judge, and then, of-late it is very much in the air that the superannuation age of the High Court and Supreme Court Judges may be enhanced by another two years on the pattern of the Central Government employees as adopted by the Union Government; more so when the age of retirement has also been extended by 2 years even in the case of Service Chiefs.'
In view whereof, he requested for the incorporation of the following conditions:-
(1) The appointment should be for a fixed period of at least 5 years from the date of assumption of the charge of the office of Lokpal.
(2) Entitlement to pay, allowances, leave of all kinds including encashment thereof, rent free furnished residential accommodation, conveyance facilities and perks as available to the Chief Justice of a High Court under the High Court Judges (Conditions of Service) Act, 1954 and the Rules framed thereunder from time to time subject, however, to the stipulations contained hereinafter. It is clarified that the amount of pay shall stand reduced by the amount of pension, excluding the amount of allowance, which the incumbent may be drawing.
(3) All perks and facilities including medical treatment and accommodation in hospitals as per the rules and the provisions applicable to the Chief Justice of High Court of Punjab and Haryana at Chandigarh. Even otherwise for all intents and purposes, including precedence and protocol parity be observed with the Chief Justice of High Court of Punjab and Haryana at Chandigarh.
(4) Provision for maintaining Provident Fund Account.
(5) In all other matters coming under the purview of conditions of service not provided for herein, the incumbent be governed by the provisions of the High Court Judges (Conditions of Service) Act, 1954 and the Rules framed thereunder from time to time.
(6) In case, before the expiration of the agreed period of five years, the post and/or office of the Lokpal is abolished or the incumbent thereof, appointed under these presents is required to vacate the post/office for any reason whatsoever other than the reason as envisaged in Clause (b) of the Proviso to Section 6(1) of the Haryana Lokpal Act, 1997, he shall, by way of compensation be paid the full amount of pay, allowances, encashment of leave earned till then and perks such as statutory allowance etc. for the entire remaining unexpired period of the tenure. Similarly for such unexpired period, he shall also be paid compensation towards house rent at the rate determined by the Government of India under Section 22A of the High Court Judges (Condition of Services) Act, 1954, as also the compensation amount on account of electricity and water charges to be calculated on an average basis for the past consumption, and would further be paid for all other benefits which would have accrued to him had he been allowed to complete the aforesaid tenure of five years.'
[2.5] His stand was accepted but the exercise has proved futile as change of Government led to the issuance of an Ordinance and thereafter an enactment, which according to the petitioner was aimed at annulling his appointment. These terms and conditions were expressly incorporated in the order of his appointment as Lokpal as they were acceptable to the State Government in its entirety. Acting upon the commitment and promise made by the respondent, the petitioner resigned from the office of the Judge of Allahabad High Court with effect from 5.1.1999, which was ultimately notified on 19.2.1999. He was appointed as Lokpal on 5.1.1999 in terms of the warrant of appointment dated 4.1.1999 along with which were appended in Schedule A the terms and conditions of his appointment. On the basis of this position, the petitioner contends that the terms of the agreement became an inherent part of his appointment as permissible in view of Clause (2) of Article 310 of the Constitution of India and as he was appointed for a tenure of five years, he was entitled to the pay and allowances as admissible to the Chief Justice of Punjab and Haryana High Court from time to time less the pension, if any. Relevant Clause of Schedule 'A' attached with the warrant of appointment reads as under:-
'13. In cases, before the expiration of the agreed period of five years, the post and/or office of the Lokpal is abolished or the incumbent thereto, appointed under these presents, is required to vacate the post/office for any reason whatsoever other than the reasons as envisaged in Clause (b) of the proviso to sub Section (1) of Section 6 of the Haryana Lokpal Act, 1997, he shall, by way of compensation, be paid the full amount of pay, allowances, encashment of leave earned till then, and perks such as statutory allowances etc., for the entire remaining unexpired period, he shall also be paid compensation towards house rent at the rate determined by the Government of India under Section 22A of the High Court Judges (Conditions of Services) Act, 1954 as also the compensation amount on account of electricity and water charges to be calculated on an average basis for the consumption, and would further be paid for all other benefits which would have accrued to him had he been allowed to complete the aforesaid tenure of five years.'
3. His stand was accepted but the exercise has proved futile as the Government changed.
4. Vide Haryana Lokpal (Amendment) Bill, the Legislature of the State of Haryana amended the 1997 Act to the effect that the word 'Lokpal' wherever occurs was substituted with the word 'Lokayukta'. The amendment was made effective with effect from 27.1.1999. After joining as Lokpal, the petitioner continued working in that capacity until the promulgation of the 1999 Ordinance on 18th of September, 1999 by which the Haryana Lokayukta Act, 1997 was repealed by Section 2 of the Ordinance reads as under:-
'(2) Notwithstanding anything contained in any contract, law or rules made thereunder, Lokayukta shall not be entitled to any compensation for the unexpired period of his tenure.'
This Ordinance continued to hold the field until the enactment of the 2002 Act, which contain Section 25, which reads as under:-
'25. Repeal saving and overriding effect:
(1) The Haryana Lokayukta Act, 1997 (Haryana Act No. 21 of 1998) and the Haryana Lokayukta (Repeal) Ordinance, 1999 (Haryana Ordinance No. 4 of 1999) are hereby repealed.
(2) Notwithstanding anything contained in any contract, law or rules made thereunder, the Lokayukta shall not be entitled to any compensation for the uuexpired period of his tenure.
(3) All matters pending before the Lokayukta before the repeal of the Haryana Act No. 21 of 1998 shall be inquired into by the Lokayukta under this Act.'
5. After the promulgation of this Ordinance, the petitioner had filed Writ Petition (Civil) No. 442 of 1999 in the Supreme Court and as on the first date of hearing the learned Attorney General had made a statement that a new Act would soon be enacted, the petition was dismissed as withdrawn on 12.10.2001 after recording the statements of the petitioner that he would seek the relief in the High Court.
6. Thereafter, the petitioner filed Writ Petition No. 6142 of 2001 in the Allahabad High Court (Lucknow Bench) which was resisted apart from the merits on the ground of territorial jurisdiction and was dismissed on 13.7.2004 for want of jurisdiction with the following observations:-
'The writ petition is, therefore, dismissed for want of jurisdiction with liberty to the petitioner to approach the appropriate forum, if so desires.'
[6.1] It is, in these circumstances, that the petitioner has approached this Court for seeking the reliefs mentioned herein before.
7. The petitioner's challenge is sought to be defended on behalf of the State of Haryana on the basis of the following preliminary objections:-
(1) That the office of the Lokpal had been created under the Haryana Lokpal Act, which thereafter had been substituted by the word 'Lokayukta'. It was asserted that the petitioner was asked to convey his consent for appointment as a Lokpal. This the petitioner had conveyed through letter Annexure P-5 with some stipulations which amounts to entering into a contract. After his appointment, he had taken the oath of office on 5.1.1999 whereafter the Council of Ministers had decided to promulgate an Ordinance to repeal the Haryana Lokayukta Act and constitute a Committee of Legal Experts to draft a new Act after removing various lacunas, which existed in the old Act. Consequently, the petitioner was rightly removed from the office of the Lokayukta and the 2002 Act has inserted Section 25(2) therein as per which the petitioner is not entitled to compensation for the unexpired term of his tenure.
(2) That the Haryana Lokayukta Act, 1997 was rightly repealed keeping in view the various lacunae in the Act. Some of these are enumerated below for the ready reference:-
(i) According to Section 9(c) of the Act ibid the Lokayukta can not enquire into an allegation against a public servant, if the complaint is made after expiration of a period of 10 years from the date on which the conduct complained against is alleged to have been committed. This provision was made without any notice on the floor of the Haryana Vidhan Sabha by circumventing the recommendations of the select committee constituted by the Vidhan Sabha to go into the proposals in the erstwhile Bill placed before the Haryana Vidhan Sabha. All the members of the opposition including the Samta Party and the Congress had vehemently protested against this limitation on the grounds that the then Chief Minister, Shri Bansi Lal had cleverly excluded the tenure of his own governance of the State of Haryana by reducing the period in the proposed Bill from 20 to 10 years since he had been the Chief Minister of Haryana till June, 1987. It was also pointed out that this was in breach of his own undertaking given to the House on 22.11.1996 when it had been stated by him that the Bill would allow the Lokayukta to take cognizance of any compliant after the creation of the State of Haryana. This period was required to be enhanced,
(ii) According to Section 6(1) of the Act ibid the Lokayukta would be eligible for reappointment for another term of 5 years or less, as the case may be, within the age limit of 70 years at the discretion of the State Government. This provision would reduce the institution of Lokayukta to a puppet in the hands of the incumbent Chief Minister/Government, since the Lokayukta would get his reappointment only at his discretion. The provision of re-appointment of the Lokayukta was required to be deleted.
(iii) Section 3 of the Act ibid provides for the procedure to be adopted for the appointment of the Lokayukta. The procedure speaks for appointment on the advice of the Chief Minister who shall consult the Speaker of the Haryana Vidhan Sabha, Leader of Opposition and the Chief Justice of India in case of appointment of a person who is or has been a judge of the Supreme Court or Chief Justice of the High Court, and Chief Justice of the concerned High Court in case of appointment of a person who is or has been a Judge of the High Court. This procedure is silent about the action to be taken in case one of these consultees differ with the name of the proposed person. This provision was required to be made specific to do away with arbitrariness and the imposition of the choice of only the Chief Minister.
(iv) Section 10(2) of the Act ibid empowers the Lokayukta to dispense with the submission of an affidavit by a complainant. This provision can be misused by any complainant to indulge in character assassination or making false complaints with impunity since without having submitted an affidavit the complainant cannot be proceeded against legally if and when the complaint is found to be false. This provisions was also required to be made specific or deleted altogether.
(v) Proviso to Section 13 of the Act ibid allows the State Government to withhold the production of any record or document on the grounds of security or in public interest. This provision needs to be made specific or deleted so as to prevent its misuse by the Government in power in stonewalling any complaint against its functionaries/ministers etc. This provision also needs to be either deleted or made specific to define specific areas of public interest.
(vi) The power to initiate contempt proceedings vested in the Lokayukta by way of Section 15 of the Act ibid ousts the jurisdiction of the High Court or at least confers a contempt jurisdiction in the Lokayukta parallel to the one vested in the High Court under the provisions of the Constitution of India and Contempt of Court Act, 1971. This jurisdiction was required to be debated in detail and suitable legal advice in consultation with the High Court was also required.
(vii) Section 18 of the Act ibid provides for prior consultation with the Government before the Lokayukta can utilize the service of any officer or investigating agency of the State Government. This provision severely curtails the authority of the Lokayukta who would have to be at the mercy of the State Government before proceeding with any inquiry.
[7.1] The State has also taken following objections:-
The previous Government's decision to provide the petitioner the status equivalent to that of the Chief Justice of the High Court was unprecedented and so was the act of the petitioner who was sitting Judge of the High Court to ask for protection under Article 310(2) of the Constitution of India considered highly inappropriate. The papers regarding the special protection in the shape of contract under Article 310 of the Constitution of India was not submitted before his Excellency the Governor and, therefore, the petition deserves to be dismissed. The petitioner has no right to challenge Section 25(2) of the 2002 Act as his appointment was not governed by the aforesaid Act. His reliance on Sri Justice S.K. Ray's case (supra) is misconceived as there was no provision akin to the 1999 Ordinance and Section 25(2) of the 2002 Act. As after cutting short of his tenure as Lokpal, he has been working as Executive Chairman, Legal Service Authority and Chairman, Public Service Tribunal, Uttranchal with effect from 31.3.2001 and, therefore, he is not entitled to any salary for the said period as that would amount to giving him double benefit for the same. His appointment as Lokayukta was not in order as the status of the Chief Justice to a Lokayukta could not be given without consultation with the Chief Justice of India as provided by Section 3(1) of the Haryana Lokayukta Act, 1997. His assertions that the circumstances in which the Ordinance was issued indicates a bias towards the Institution of Lokayukta and the petitioner, are wrong as the infirmities enumerated as grounds for the repeal and re-enactment of the provisions justified both the Ordinance and the subsequent Act. Thus, there is no merit in the writ petition and the same should be dismissed.
8. We have heard Mr. Sanjay Bansal, appearing on behalf of the petitioner and Mr. Ashok Aggarwal, Advocate General, Haryana, appearing on behalf of the State.
9. On behalf of the petitioner, it was submitted as follows:-
The repeal of 1997 Act has evidently been carried out for ulterior motives with a view to annul the appointment of the petitioner and, therefore, the same cannot be sustained on account of lack of bonafides. Even if this argument does not find favour with the Court, the facts and circumstances would show that the basis of the petitioner's appointment as Lokayukta was a contract within the meaning of Article 310(2) of the Constitution of India and the obligations created thereunder remained unaffected by the repealing clause of Section 25(2) of the 2002 Act. This Section would not be applicable to the terms which regulated the conditions under which the petitioner had agreed to take up his assignment as Lokayukta and, therefore, would not be covered by the scope of Section 25(2) of the 2002 Act. There being no entry in List No. II of the Seventh Schedule of the Constitution of India, which enabled the State of abrogate a contract validly entered into by the State under Article 310(2) of the Constitution of India, Section 25(2) of the 2002 Act ultra vires Articles 14 and 310(2) of the Constitution of India and, therefore, the obligations created under the warrant of appointment would continue to hold the field and the petitioner would be entitled to the relief sought for. This would also bring within the purview of judicial review under Article 226 of the Constitution of India, the Legislative actions where these transgress the limits of Legislative competence. Since an enactment seeks only to target the petitioner, the incorporation thereof in the 2002 Act suffers from the vice of arbitrariness and so on this ground also the writ petition has to be allowed. In view of the ratio laid down in Sri Justice S.K. Ray's case (supra) interference be made as he has been coerced, exemplary costs be awarded.
10. On behalf of the respondent, it was urged as follows:-
Once the Legislature enacts a law, the motives which impelled the Legislature to pass the Act are beyond the scope of judicial review. It is not possible for Courts to scrutinise the Act for the purpose of determining what was the reason which impelled the Legislature to bring on the Statute Book a particular enactment. In view of this, the challenge to the 2002 Act on the ground that Section 25(2) thereof has been introduced only with a view to disentitle the petitioner from enforcing the terms of his appointment cannot be gone into by the Court for the purpose of granting relief to the petitioner. The terms incorporated in the warrant of appointment would at best constituted a contract which would fall within the ambit of Section 25(2) of the 2002 Act as no claim for compensation would, in view of the aforesaid provisions, be maintainable and, therefore, the writ petition cannot succeed. In view of the admitted case that the petitioner took over as the Chairman of the Public Service Tribunal, Uttaranchal w.e.f. 31.3.2001 and thereafter has been working as Executive Chairman of the Legal Services Authority, there is no warrant for awarding him compensation for the unexpired period of his tenure as that would amount to unjustified enrichment as no financial loss would apparently have been caused to him by the promulgation of the 1999 Ordinance.
11. The first argument advanced on behalf of the petitioner proceeds on the premise that the chain of events which preceded the promulgation of the Ordinance immediately after the change of government in the State of Haryana warrants an inference that it embodied the reaction of the new Chief Minister against a Lokpal, who had been appointed by his political opponents. The petitioner wants us to read into the Ordinance, malice in law to justify this intervention and setting aside of the same. This argument cannot be sustained. It was the reflection of the executive desire to repeal the 1997 Act. Article 213 of the Constitution of India reads as under:-
'213. Power of Governor to promulgate Ordinances during recess of Legislature:-
1. It at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in State, except when both Houses of the legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, Without instructions from the President, Promulgate any such Ordinance if-
a) a Bill containing the same provision would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
2. An Ordinance promulgated under this Article shall have the same force and effect as Act of the Legislature of the State assented to by the Governor, but every such Ordinance-
a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the re-assembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
b) may be withdrawn at any time by the Governor.
Explanation:- Where the Houses of the Legislature of a State having a Legislative Council are summoned to re-assemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purpose of this clause.
3) If and so far as an ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, if shall be void;
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this Article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.'
This embodies the Ordinance making power of the Governor and there is no material before us to show that this power has not been rightly invoked. It is well settled that the Ordinance issued by the Governor in the exercise of the powers under Articles 213 of the Constitution of India embody the executive desire to legislate on a subject at a time when the Assemblies are not in Session. This being the accepted position, the power to issue an Ordinance is in fact the power of the executives to legislate and same cannot be assailed on the grounds of malice as either it would ultimately be replaced by an appropriate Legislation or elapse as per the provisions of the Constitution.
[11.1] In this regard relevant are the observations of the Apex Court in K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr., (1985)1 S.C.C. 523, which are to the following effect:-
'it is impossible to accept the submission that the Ordinance can be invalidated on the ground of non-application of mind. The power to issue an Ordinance is not an executive power but is the power of the executive to legislate, The power of the Governor to promulgate an Ordinance is contained in. Article 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is 'Legislative Power of the governor'. This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject. Therefore, though an Ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State Legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of Legislature.
On the question as to the legislative character of the Ordinance making power, we may refer to the decisions of this Court in A.K. Roy v. Union of India and R.K. Garg v. Union of India.
Shri Ray relied upon a decision of this Court in High Court of Andhra Pradesh v. V.V.S. Krishnamurthy, which has taken the view that in regard to the servants and officers of the High Court, Article 229 of the Constitution makes the power of their appointment, dismissal, removal, compulsory retirement, etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interference with the exercise of that power. This decision cannot assist the petitioners since, it deals with the limitations on the executive power of the Government to interfere with the power of the Chief Justice under Article 229. The executive cannot encroach upon that power. The decision of this Court in Moti Ram Deka which was also cited by the learned counsel, does not touch the point raised by him.
Though Shri Ray presented his argument in the shape of a challenge to the Ordinance on the ground of non-application of mind, the real thrust of his argument was that the hurry with which the Ordinance was passed shows the arbitrary character of the action taken by the State Government. We have already rejected the contention of haste and hurry as also the argument that the provisions of the Ordinance are, in any manner, arbitrary or unreasonable and thereby violate Articles 14 and 16 of the Constitution,
Shri R.K. Garg, who appears in Transfer Cases Nos. 70, 71 and 72 of 1983, challenge the validity of the Ordinance on the ground that casting all established norms aside, it fixes the age of retirement at 55 years notwithstanding industrial adjudications and even settlements arrived at between employers and employees. Relying upon certain decisions of this Court like Maneka Gandhi v. Union of India and State of Madras v. V.G. Row, in support of his submission that arbitrariness invalidates laws, counsel contends that a law which overrules an industrial adjudication or, settlement is fundamentally unreasonable or arbitrary and must, therefore, be held to be violative of Article 14 of the Constitution. It was also urged by counsel that by reducing the age of retirement to 55 years, the Government employees were deprived of their right to livelihood. There is no substance in this latter argument because if a rule of retirement can be deemed to deprive a person of his right to livelihood, it will be impermissible to provide for an age of retirement at all. That will be contrary to public interest because the State cannot afford the luxury of allowing its employees to continue in service after they have passed the point of peak performance. Rules of retirement do not take away the right of a person to his livelihood; they limit his right to hold office to a stated number of years. This argument of the learned counsel can be rejected for other reasons also, but we do not propose to deal with these transferred cases since, there is nothing on record to show that there are any industrial adjudications or settlements between employers and employees providing for an age of retirement for any section of industrial workers. These transferred cases will be delinked from the other writ petitions and will be listed for hearing later, so that they can be dealt with upon their own facts. If the question raised by Shri Garg is academic, it will be needless to consider it.
The argument of mala fides advanced by Shri A.T. Sampath and adopted in passing by some of the other counsel, is without any basis. The burden to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions. Besides, the Ordinance-making power being a legislative power, the argument of mala fides is misconceived. The Legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. It's reasons for passing a law are those that are stated in the Objects and Reasons and if, none are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This find of 'transferred malice' is unknown in the field of legislation.'
[11.2] To the same effect is the view taken by the Apex Court in T. Venkata Reddy and Ors. v. State of Andhra Pradesh, (1985)3 S.C.C. 198, wherein it was observed as under:-
'The existence of necessity for promulgating the Ordinance is not justifiable. The validity of an Ordinance cannot be tested on grounds similar to those on which an executive or judicial action is tested. The question whether a statute is constitutional or not is always a question of power of the Legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. The motive of the Legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts. An Ordinance passed either under Articles 123 or under Article 213 of the Constitution stands on the same footing.'
12. These principles, which have been culled for taking out of the purview of judicial review the question of mala fide used by the executive of its legislative apply with equal force to enactments passed by the competent Legislatures in which the scrutiny of the Court has to be confined to the legislative competence and the motives which impelled the Legislatures to pass a particular enactment too cannot be gone into by Courts of law. The doctrine of colourable legislation was initially explained by the Apex Court in K.C. Gajapati Narayan Deo and Ors. v. State of Orissa, A.I.R. 1953 S.C. 375 to the following effect:-
'Scope and meaning of doctrine of colourable legislation examined. If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, convert and indirect and it is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements.'
[12.1] Thereafter in Welfare Association A.R.P. Maharashtra and Anr. v. Ranjit P. Gohil and Ors. (Para 41 of A.I.R. 2003 S.C. 1266 : (2003)9 S.C.C. 358 after reviewing the earlier decisions in para 42 it was observed as under:-
'The doctrine of colourable legislation came to be examined by a Constitution Bench of this Court in K.C. Gajapati Narayan Deo v. State of Orissa, A.I.R. 1954 S.C.R. 1 . It was held that the doctrine of colourable legislation does not involve any question of 'bona fides' or 'mala fides' on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motives does not arise at all. Whether a Statute is constitutional or not is thus always a question of power (vide Cooley's Constitutional Limitations, Vol.1, P.379). The crucial question to be asked is whether there has been a transgression of legislative authority as conferred by the Constitution which is the source of all powers as also the separation of powers. A legislative transgression may be patent, manifest or direct or may also be disguised, covert and indirect. It is to this latter class of cases that the expression 'colourable legislation' has been applied in certain judicial pronouncements. The expression means that although apparently a legislature in passing a statute which purports to act within the limits of its powers, yet in substance and in reality it transgresses those powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise. The discerning test is to find out the substance of the Act and not merely the form or outward appearance. If the subject matter in substance is something which is beyond the legislative power, the form in which the law is clothed would hot save if from condemnation. The constitutional prohibitions cannot be allowed to be violated by employing indirect methods. To test the true nature and character of the challenged legislation, the investigation by the court should be directed towards examining (i) the effect of the legislation, and (ii) its object, purpose or design. While doing so, the court cannot enter into investigating the motives, which induced the legislature to exercise its power.'
13. It is in the light of the aforementioned decisions and bearing in mind the parameters laid out therein that we will have to examine the contentions advanced by the parties.
14. On going through Section 25(2) of the 2002 Act, we find that it incorporates a provision similar to Section 2(2) of the 1999 Ordinance and it is in the light of these two provisions that the State asserted that it is not obliged to pay the compensation envisaged in Clause 13 of the Schedule attached to the warrant of appointment. The petitioner, on the other hand, asserted that the terms incorporated in the schedule embodied the acceptance of his request as forwarded to the Chief Secretary for protecting his tenure, the conditions of service and the perks by entering into a special contract under Article 310(2) of the Constitution of India and, therefore, the schedule cannot be treated as an ordinary contract of service, the implementation whereof in the event of its violation would be hit by the provisions of Section 25(2) of the 2002 Act.
15. It would be but appropriate for us to advert to the relevant provisions of the 1997 Act under which the petitioner was appointed as the Lokpal. Section 3 thereof, which deals with the appointment of Lokpal, reads as under:-
'3. Appointment of Lokpal: (1) For the purpose of conducting investigations in accordance with the provisions of this Act, the Governor shall, by warrant under his hand and seal, appoint a person to be known as the Lokpal.
Provided that the Lokpal shall be appointed on the advice of the Chief Minister, who shall consult the Speaker of the Haryana Legislative Assembly, Leader of the Opposition and the Chief Justice of India in case of appointment of a person who is or has been a Judge of the Supreme Court or Chief Justice of the High Court, and Chief Justice of the concerned High Court in case of appointment of a person who is or has been a Judge of a High Court.
2) Every person appointed as the Lokpal shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by him, an oath of affirmation in the form set out for the purpose in the Schedule.'
[15.1] Section 6 of the 1977 Act, which spells out the conditions of service of Lokpal reads as under:-
'6. Terms of office and other conditions of service of Lokpal:
(1) Every person appointed as the Lokpal shall hold office for a term of five years from the date on which he enters upon his office or till the age of seventy years, whichever is earlier. He would be eligible for re-appointment, for another term of five years or less, as the case may be, within the said age limit at the discretion of the State Government:
Provided that:
a) the Lokpal may, by writing under his hand addressed to the Governor, resign his office and such resignation shall be effective as soon as it is accepted; and
b) the Lokpal may be removed from the office in the manner specified in Section 7.
2) A vacancy occurring in the office of the Lokpal shall be filed in as soon as possible.
3) On ceasing to hold office, the Lokpal shall be ineligible for further employment in any capacity under the State Government or any local authority, co-operative society, Government company, university, statutory corporation under the administrative control of the State Government.
4) There shall be paid to the Lokpal such salary as may be prescribed.
5) The allowances payable to, and other conditions of service of Lokpal shall be such as may be prescribed:
Provided that in prescribing the allowances payable to, and other conditions of service of the Lokpal regard shall be had to the allowances payable to and other conditions of service of a serving Judge of the Supreme Court or the Chief Justice or Judge of a High Court, as the case may be:
Provided further that the allowances payable and other conditions of service of the Lokpal shall not be varied to his disadvantage after his appointment,
6) The salaries and allowances payable to, or in respect of, the Lokpal shall be the expenditure charged on the Consolidated Fund of the State,'
[15.2] A perusal of these Sections shows that under the Act the Lokpal would be entitled to receive the allowances payable to and other conditions of service, as would be applicable to a serving Judge of the Supreme Court, Chief Justice or a Judge of the High Court as the case may be. It was not disputed before us that on receipt of the communication from the Chief Secretary the petitioner while accepting the Offer made his acceptance conditional upon his being guaranteed additional protection for his tenure in the terms, which were ultimately incorporated in Clause 13 of the Schedule attached with the warrant pf appointment. This condition was accepted and being one which was not specified under Section 6 (1) of the 1997 Act, the appointment of the petitioner cannot be treated to be one which has been made strictly in compliance with the terms incorporated in the aforesaid provisions. It is probably on account of these circumstances that the counsel for the petitioner submitted that the appointment of his client was not covered by the doctrine of pleasure as incorporated in Article 310(1) of the Constitution of India as is normally the case in all appointments to civil posts. Since the condition agreed to was a term in conformity with Article 310(2) of the Constitution of India, it mellows down the doctrine of pleasure to the extent that the State agreed to compensate the petitioner as mentioned in Clause 13 of the Schedule attached with the warrant of appointment Such a modification was permissible under Article 310(2) of the Constitution and having been appended to the warrant 6f appointment; would clearly constitute a contract independent of the provisions of Section 6(1) of the Act For this view of ours,' we find support from the interpretation expounded by H.M. Seervai in 'Constitutional Law of India', Fourth Edition, Volume 3, Page 3002 in the following terms:-
'27.24 The implications of Article 310(2) have not been noticed in the Sup. Ct. judgments which we have considered so far. It is submitted that Article 310(2) throws a decisive right on the nature, of the tenure at 'pleasure' provided by, Article 310(1). The consequences of 'tenure at pleasure' have been set out in paras 27.7. and 27.8 above. In a limited class of cases Article 310(2) expressly overrides those consequences as is clear, from the opening words 'notwithstanding that a person holding a civil post.... holds office during the pleasure of the President or .. the Governor of the State'. Unless authorised by law, a fixed term contract of service with the Crown is void as contrary to the tenure at pleasure. Such a fixed term contract would be wholly void in India because no law can be passed which would fetter, the pleasure of the President or the Governor. Consequently, Article 310(2) expressly authorised the making of a fixed term contract. Again, the payment of compensation to a servant of the Crown for premature termination of a fixed term contract is void. Article 310(2) expressly authorises such payment if the post is abolished. It also authorises the payment of compensation to a Govt. servant if he is asked to vacate the post before the stipulated period for reasons not connected with any misconduct on his part. Article 310(2) thus not only emphasize the consequences of the tenure at pleasure, but also establishes that our Constitution recognises the distinction between terminating a person's service for reasons connected with misconduct. A person who is removed for misconduct cannot be paid compensation under Article 310(2), but he can be paid compensation if he is removed for reasons not connected with misconduct.'
[15.3] In this view of the matter, the distinction sought to be brought) out by the State in relation to the ratio laid down in Sri Justice S.K. Ray's case (supra) is not available as there is no abrogation of the constitutional obligations created under Clause 13 of the Schedule attached with the warrant of appointment and, therefore, the State would be obliged to pay compensation to the petitioner that may be payable to him as per the provisions of the aforesaid Clause.
[15.4] In view of the above observations, we are of the view that the terms of the appointment of the petitioner having been finalised not under the Act but under Article 310(2) of the Constitution of India the introduction of Section 2(2) in 1999 Ordinance and Section 25(2) in 2002 Act are of no help to the State. Section 25(2) of the 2002 Act protects the State against any obligations under a contract and not against obligations created under the Constitution of India. This, in our opinion, being the nature of the contract on the basis whereof the petitioner was appointed, we proceed to examine the effect thereon of Section 25(2) of the 2602 Act, on the basis whereof, the respondent asserted that they are absolved of the responsibilities of paying compensation to the petitioner for the unexpired period of his tenure would naturally be dealing with the compensation that would be payable in case the petitioner was enforcing his rights, under the 1997 Act, In the present case, the petitioner relied on the 1997 Act only to fix the nature of job, which he was required to do in terms of the contract given to him by his Excellency the Governor. The terms incorporated in the schedule attached with the, warrant of appointment being de hors Section 6(1) of the 199,7 Act as is evident from the fact that according to Clause, 13 of the Schedule:-
a) the appointment should be for, a fixed period of at least 5 year from the date of assumption of the charge of the office of Lokpal.
b) All perks and facilities including medical treatment and accommodation in hospitals as per the rules and the provisions applicable to the Chief Justice of High Court of Punjab and Haryana, Chandigarh. Even otherwise for all intents and purposes, including precedence and protocol parity be observed with the Chief Justice of High Court of Punjab and Haryana at Chandigarh.
c) In case, before the expiration of the agreed period of five years, the post and/or office of the Lokpal is abolished or the incumbent thereof, appointed under these presents, is required to vacate the post/office for any reason whatsoever other than the reason as envisaged in Clause (b) of the Proviso to Section 6 (1) of the Haryana Lokpat Act, 1997, he shall, by way of compensation be paid the full amount of pay, allowances, encashment of leave earned till then and perks such as statutory allowance etc. for the entire remaining unexpired period, he shall also be paid compensation towards house rent at the rate determined by the Government of India under Section 22A of the High Court Judges (Conditions of Service) Act, 1954 as also the compensation amount on account of electricity and water charges to be calculated on an average basis for the past consumption, and would further be paid for all other benefits which would have accrued to him had he been allowed to complete the aforesaid tenure of five years.
Whereas under the aforesaid Section, he would only be entitled to receive:-
a) the allowance payable to and other conditions of service of Lokpal shall be such as may be prescribed:
Provided that in prescribing the allowance payable to, and other conditions of service of the Lokpal regard shall be had to the allowance payable to and other conditions of service of a serving Judge of the Supreme Court or the Chief Justice or Judge of a High Court, as the case may be:
Provided further that the allowance payable and other conditions of service of the Lokpat shall not be varied to his disadvantage after his appointment.
b) The salaries and allowances payable to, or in respect of the Lokpal shall be the expenditure charged on the Consolidated Fund of the State.
16. This brings us to the question as to what compensation the petitioner would, in the facts and circumstances of the present case, be entitled to.
(16.1) Admittedly, the petitioner was disentitled from continuing as Lokpal after the promulgation of the 1999 Ordinance. It is also not disputed that on 31.3.2001, he took charge as Chairman of the Public Service Tribunal, Uttranchal and thereafter as Executive Chairman of the Legal Service Authority. Till date, he i$ continuing in office. It is also not disputed that according to the terms of the contract he was to get the pay and allowances of Chief Justice of the Punjab and Haryana High Court.
(16.2) While working as Executive Chairman of the Legal Service Authority and Chairman of the Public Service Tribunal, Uttranchal, the pay and allowances payable would have to be fixed as per what he was drawing as a sitting Judge of the Allahabad ' High Court. In out opinion, he would be entitled to receive perks and allowances of the Chief Justice of the Punjab and Haryana High Court from 5.1.1999, the date on which he had taken oath as Lokpal of Haryana to 31.3.2001, the date on which he took over as Chairman of the Public Service Tribunal and thereafter, the difference between the allowances he would be receiving as a Chief Justice of the High Court and what he has ' received as Executive Chairman of the Legal Service Authority and the President of Public Service Tribunal.
17. In result this Writ petition is allowed to the extent indicated as above with costs quantified at Rs. 10,600/-.
18. Let a copy of this order be handed over to the learned Advocate General, Haryana for follow-up action.