SARWAR ALI, J.

1. These three writ applications have been heard together and will be governed by a common judgment. In these writ applications prayers have been made for issue of a writ in the nature of quo warranto as also prohibition. During the course of argument, however, it was rightly conceded that the writ of prohibition will not be attracted. That is so because no judicial or quasi-judicial order or proceeding is challenged in these writ applications. The substantial prayer, therefore, is with respect to issue of a writ in the nature of quo warranto as against respondent No. 1. Substantially therefore, the appointment of respondent No. 1 as Lokayukta is under challenge.

2. The law making provision for the appointment, and laying down function, of the Lokayukta was for the first time made by promulgation of Bihar Lokayukta Ordinance, 1973 being Ordinance No. 3 of 1973. The Ordinance was signed on 12-1-1973 by the then Governor and published in the Bihar Gazette on 18-1-1973. No action was taken in pursuance of the Ordinance. On 14-3-1973 a bill in terms of Ordinance was introduced in the Bihar Legislative Council. On 8-4-1973 the first Ordinance lapsed. Hence necessity of the Second Ordinance being Bihar Lokayukta (Second) Ordinance, 1973 (the Second Ordinance). The Governor signed this Ordinance on 6-5-1973 and the same was published in the Bihar Gazette on 11-5-1973. Sec.3 of the Ordinance relates to the appointment of Lokayukta. In the exercise of purported power under the provisions of this Ordinance respondent No. 1 was appointed as the Lokayukta. The aforesaid appointment is under challenge for various reasons which shall be indicated hereinafter. The Ordinance envisages the appointment by a warrant under the hand and seal of the Governor. During the course of argument the warrant was produced, which is stated 26-5-1973.

3. The Second Ordinance lapsed on the mid-night of 26th August, 1973. The lapse was followed by promulgation of a Third Ordinance, called Bihar Lokayukta (Third) Ordinance (the Third Ordinance). The Ordinance was signed by the Governor on 5-10-1973 and published in the Bihar Gazette on 8-10-1973. This was followed by the Bihar Lokayukta Act, 1973, Bihar Act 6 of 1974 (the Act).

4. In order to appreciate the contentions raised it would be necessary to refer to some of the provisions of the Ordinances and the Act. It may be stated at the outset that the parties to these writ applications accepted that there is no substantial differences between the various Ordinances and the Act except in relation to sec. 1 (sic) of the Third Ordinance and Sec.23, which was not in the First and Second Ordinances, but was incorporated in the Third Ordinance. This section (Sec.23), in the same language, finds place as Sec.23 in the Act (except that in the Act there is reference to the third Ordinance).

5. Lokayukta as defined in Clause (2) (e) of the Ordinance means a person appointed as the Lokayukta of Bihar, under Sec.3. Sec.3, which has an important bearing on the case may be quoted in extenso:

"Appointment of Lokayukta.- (1) For the purpose of conducting investigations in accordance with the provisions of this Ordinance the Governor shall by warrant under his hand and seal appoint a person to be known as the Lokayukta of Bihar: Provided that the Lokayukta shall be appointed after consultation with the Chief Justice of the Patna High Court and the leader of the Opposition in the State Legislative Assembly or if there be no such leader a person elected in this behalf by the Members of the Opposition in the State Legislative Assembly in such manner as the Speaker may direct.

(2) The person appointed as the Lokayukta shall, before entering upon his office, make and subscribe, before the Governor, or some person appointed in that behalf by the Governor, an oath or affirmation in the form set out for the purpose in the First Schedule."

Section 4 states that the Lokayukta is not to hold any other office. Sec. 5