S.R. Bannurmath, C.J.

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 authority 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, 1963, the first respondent is ineligible to take up any employment under the State of Kerala and 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 forbearing 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 31.2009 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 of 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.

2. 4. Theineligibility 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 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, 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