IMPORTANT POINT
Haryana Lokayukta – Office of the Lokayukta, Haryana does not come "under the Government of State of Haryana".

Rameshwar Singh Malik J.

Twin important questions of law, involved in the instant writ petition, that fall for consideration of this Court are:

(I) Whether the appointment of second respondent as Lokayukta for the State of Haryana amounts to "employment"?

(ii) Whether the office of Lokayukta Haryana comes "under the Government of State of Haryana" and the appointment of second respondent would be hit by the prohibition under Section 11 of the Armed Forces Tribunal Act, 2007 (‘AFT Act' for short)?

2. Feeling aggrieved against the appointment of second respondent as Lokayukta for the State of Haryana, vide warrant of appointment dated 5.4.2016 (Annexure P-1), followed by notification dated 20.7.2016 (Annexure P-6), petitioner has approached this Court by way of present writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of Quo-Warranto. He also seeks a writ in the nature of Certiorari for quashing the appointment of second respondent as Lokayukta for the State of Haryana.

3. Notice of motion was issued vide order dated 29.8.2016 and in compliance thereof, written statement was filed on behalf of State of Haryana-respondent No.1. Separate written statement was filed on behalf of second respondent.

4. Succinctly put, facts necessary for disposal of the present writ petition are that, after demitting his office as Hon'ble Judge, High Court of Chhattisgarh, Bilaspur, second respondent was appointed as Judicial Member of Armed Forces Tribunal (‘AFT' for short) at Gauhati Bench. However, at the time of his appointment as Lokayukta, Haryana, second respondent was posted as Judicial Member of AFT, Regional Bench, Kolkata in the State of West Bengal. Since the term of Hon'ble Mr. Justice Pritam Pal (former Judge of this Court) as Lokayukta, Haryana, was to expire on 17.1.2016, State of Haryana initiated the process for appointment of Lokayukta. After completing the consultation process, as envisaged under Section 3 (1) of The Haryana Lokayukta Act, 2002 (‘the Act' for short), notification dated 1.4.2016 came to be issued by the State of Haryana, as envisaged under Section 3 (2) of the Act. Accordingly, warrant of appointment dated 5.4.2016 (Annexure P-1) was issued by the Governor of Haryana, appointing second respondent as Lokayukta for the State of Haryana, for a period of five years, from the date he assumes the charge of his office.

5. Since second respondent was working as Judicial Member of AFT, Regional Bench, Kolkata, he submitted his resignation to the competent authority and informed the Chief Secretary to Government of Haryana, vide communication dated 11.4.2016, that on acceptance of his resignation, he shall assume the charge of the office of Lokayukta Haryana. Thereafter, vide communication dated 1.7.2016, second respondent expressed his willingness to take oath of the office of Lokayukta on 19.7.2016. Second respondent was administered the oath as Lokayukta for the State of Haryana on 19.7.2016, by the Governor of Haryana. Accordingly, notification dated 20.7.2016 was issued. Hence this writ petition.

Heard learned counsel for the parties.

6. Learned senior counsel for the petitioner, while placing reliance on the provisions of Section 11 of the AFT Act, submits that on ceasing to hold the office as Judicial Member of AFT, second respondent was ineligible for further employment under the State Government. In this regard, he also places reliance on the marginal note of Section 11 of the AFT Act, given in the Gazette of India (Extraordinary) dated 28.12.2007, published by the Ministry of Law and Justice (Legislative Department), to contend that legislative intent was to prohibit holding of any office by the Judicial Member of AFT, on ceasing to be such member. Learned senior counsel, while referring to the word ‘employment' used in Section 11 of the AFT Act, submits that it shall include every type of employment, irrespective of nature and duties as well as method of appointment.