Judgment:
S.R. Bannurmath, C.J.
1. This public interest litigation is filed by the State Secretary of AIADMK, Kerala Unit, seeking for the following reliefs-
(a) to issue a writ of quo warranto calling upon the first respondent, Lok Ayukta of the State of Kerala, to show cause under what aiithbrity of law he is holding the position of Lok Ayukta of Kerala State;
(b) to declare that by reason of the provisions contained in Section 24(3) of the Protection of Human Rights Act, 1993, the first respondent is ineligible to take up any employment under the State of Kerala arid his appointment to the post of Lok Ayukta is liable to be declared void and inoperative;
(c) to issue a writ of prohibition or any other appropriate writ, order or direction for bearing the first respondent from continuing to function as Lok Ayukta of Kerala in view of the ineligibility and disqualification suffered by him.
2. The facts of the case are not in dispute. The first respondent is a former Judge and Chief Justice of High Court of Kerala. After retirement, he was holding the position of Chairperson of Kerala Human Rights Commission and after demitting the office, on 31.1.2009 he was administered the oath of office as Lok Ayukta of the State, It is not disputed that, as per the definition of Section 3 of the Kerala Lok Ayukta Act, 1999, the first respondent as retired Chief Justice is fully qualified to be appointed as Lok Ayukta. But, what is contended is that, as the first respondent was holding the post of Chairperson pf the State Human Rights Commission, as per Section 24(3), he is ineligible for further employment under the Government of a State or under the Government of India. According to the writ petitioner, since the first respondent was holding the post of Chairperson of the Human Rights Commission, he is disqualified or ineligible to hold any further post like Lok Ayukta under the Government of State of Kerala.
3. In this regard, several decisions have been cited. As held by Apex Court in several pronouncements, the writ of quo warranto lies only against the person, who is not entitled to hold the office of public nature and is an usurper of the office. Broadly speaking, the writ of quo warranto proceedings affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the office.
4. The ineligibility under Section 24(3) of the Protection of Human Rights Act, 1993 reads thus:
24(3). On ceasing to hold office, a Chairperson or a Member shall be ineligible for further employment under the Government of a State or under the Government of India.
On a bare reading of the said provision, it is to be noted that the emphasis is on the words, 'employment under the Government' whether State or Union. That is to say, the Chairperson or a Member of Human Rights Commission is ineligible to hold any post under the Government after demitting the office of Chairperson or Member. The words 'under the Government' denotes that only when the Government can control the functions of an authority, it can be said that the authority is under the control of the Government. Such control is possible in the case of purely executive or administrative authority; but not so with judicial authority, for in I the very nature of things, where rule of law prevails, it is not open to the Government to interfere with a particular matter before the judicial authority for decision in a particular manner. The words, 'under the Government' clearly indicates that such posts must be under the employment of the Government. Considering the word 'employment' in Article 319(d) of the Constitution of India, the Apex Court in the case of Hargovind Pant v. Dr. Raghukul Tilak : (1979) 3 SCC 458 : AIR 1979 SC 1109, observed thus:
The word 'employment' in Article 319(3) if understood to mean the relationship of employer and employee does not include the office of Governor because the Governor is the head of the State and holds a high constitutional office which carries with it important constitutional functions and duties..Even if the term employment is widely construed, the element of control by the Government must be shown.
As such, it is necessary to consider whether the office of Lok Ayukta is under the Government, that is to say, whether there exists a relationship of master and servant between the Lok Ayukta and the State. It cannot be disputed that as per the scheme of the Lok Ayukta Act, to discharge the functions and duties of the office, the Lok Ayukta is not controlled by the State Government in any manner. The State Government is not at all empowered to ask the Lok Ayukta to discharge its functions or to perform its duties in the manner which it likes.
5. The Apex Court and several other High Courts have considered the appointments of Advocate General and Members of Public Service Commission in this regard. No doubt, it was contended that those decisions are in respect of constitutional authorities. But, according to the learned Counsel, the post of Lok Ayukta is a not a constitutional post. We are aware that the post of Lok Ayukta is not a constitutional one, but, it is a statutory appointment. In our view that is not the relevant factor to be looked into. What is required to be considered, in order to make the first respondent as ineligible is. to find out whether his employment is 'under the Government'.
6. Lok Ayukta is the Indian version of Ombudsman. The concept of Ombudsman is of Scandinavian origin conceived to redress the grievances of the common man in society without any high connections or influence. Ombudsman in India was conceived with the twin functions of dealing with the grievances of the people arising out of mal-admmistration, and, fighting corruption at administrative and political levels. The provisions of the Kerala Lok Ayukta Act, 1999 would show that the office is a high level impartial, standing Judicial tribunal to investigate and report on complaints of mal-administration and corruption at administrative and political levels. The Act is intended to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India taken by or on behalf of the Government of Kerala or certain public authorities in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Since high ranking categories of public servants starting with Chief Minister followed by Minister, Member of State Legislature, Government Secretary, office bearer of a political party at State level and an officer of the All India Services, employed in connection with the affairs of the State are brought under the purview of 'public servant'. The Lok Ayukta has power to punish offenders for Contempt of Court under the provisions of the Contempt of Courts Act, 1971. Except on the ground of jurisdiction, no proceedings or decision of the Lok Ayukta or Upa Lok Ayukta is liable to be challenged, re-viewed, quashed or called in question in any court. The Lok Ayukta or Upa Lok Ayukta cannot be removed from the office except by an order of the Governor passed after and addressed by the Legislative Assembly of the State and supported by a majority of the total number of the House and by a majority of not less than two third of the members of the House present on voting, on the ground of proved misbehaviour or incapacity. Detailed, procedure also has been prescribed in that regard. All these would indicate that once appointed, the Lok Ayukta or Upa Lok Ayukta there is absolutely no employer-employee relationship between the Government and ,the appointees. They are not subordinate to the Government of the State. There is no executive control over them. Needless also to say that there is no master-servant relationship. Thus the office of Lok Ayukta or Upa Lok Ayukta is an independent statutory office, which is not under the Government of the State or the Union of India.
7. No doubt, the Lok Ayukta receives his salary from the State Government. But that is not again the sole criteria to hold that he is under the employment of the State. The post of Lok Ayukta is an independent statutory post and by no stretch of imagination, can it come under the purview of 'employment under the Government; As such, we find that, the post of Lok Ayukta is a public authority which has public or statutory duties to perform and it is in no way under the control of the State Government. We find that the contention of the petitioner that Lok Ayukta being the post under the Government, per Section 24(3) of the Protection of Human Rights Act, 1993, the first respondent is disqualified or ineligible, is devoid of merits.
Hence, we find no merit in the writ petition and the same is dismissed.