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The bench said it will hear the matter at a stretch of three days from February 20. The Gujarat government has challenged the state High Court order upholding the appointment of Justice Mehta as the Lokayukta on the ground that it was unconstitutional and done without its consent. The Gujarat High Court had on January 18 upheld the appointment of Justice Mehta as the Lokayukta while sharply criticising Chief Minister Narendra Modi for his "pranks" that had sparked a "constitutional mini crisis".
In the petition filed on January 19, the state government sought stay of the High Court judgement and also of the August 25, 2011, order of Governor Kamla Beniwal by which the warrant of appointment of Justice Mehta as Lokayukta was passed. In the petition filed through advocate Mahesh Agarwal, the Gujarat Government said that substantial questions of law have arisen, including that of absence of advice by the council of ministers on the appointment of Lokayukta by the Governor.
It also objected to the use of "very harsh expressions and language" against Gujarat Chief Minister by the high court. However, challenging the judgement, the government said "the Governor, while exercising function under section 3 of the Gujarat Lokayukta Act, 1986, is to act on the aid and advice of the council of ministers headed by Chief Minister and is not required to exercise the said function in the individual and personal capacity and discretion."
"In the present case, there has never been any advice by the council of ministers for the appointment in question and that, therefore, on this ground alone, the action under challenge deserves to be held constitutionally bad," it said. The State said the warrant for appointment of Justice Mehta as Lokayukta could not have been issued and that too through the Governor without the aid and advice of the council of ministers.
The state government said personal discretion exercised by the governor in unilaterally issuing the warrant of appointment of Lokayukta was "unwarranted". The high court had rejected the plea of the state, three months after it had given a split verdict. Gujarat High Court Justice V M Sahai, who decided the matter as a third judge had said the "pranks" played by the chief minister on the Lokayukta issue "demonstrates deconstruction of our democracy".
He had said Modi`s "questionable" conduct of "stonewalling" the appointment of Justice Mehta threatened the rule of law. The Gujarat High Court had said there was no good reason to reject the name of Justice Mehta once the objections of the chief minister had been overruled by the Chief Justice. Justice Sahai had described Modi`s refusal to accept Justice Mehta`s appointment as advised by the Gujarat High Court Chief Justice as "spiteful and challenging".
He had said the action demonstrated a "false sense of invincibility" on Modi`s part. Modi had insisted on Justice J R Vora to be appointed as Lokayukta but this was not accepted by the Chief Justice of the Gujarat High Court on the ground that the judge had been appointed as the Director of the Gujarat State Judicial Academy.
The State Governor had on August 25 last year appointed Justice Mehta to the post of Lokayukta, which had been lying vacant for the last eight years. The state had challenged the appointment in the high court the very next day, saying the Governor had "bypassed" it. Modi had maintained that the Governor had acted unconstitutionally in selecting the ombudsman as the state government had not been consulted.
On October 11 last year, a division bench of the high court had given a split verdict on the appointment issue. While one of the judges had upheld the decision of the Governor, another judge had quashed the warrant of appointment issued by him, terming it unconstitutional. The matter was then referred to Justice Sahai.
