Thaindian News

New Delhi, Jan 19 (IANS) The Gujarat government Thursday moved the Supreme Court challenging a state high court verdict that upheld the appointment of Justice (retd) R.A. Mehta as the state’s Lokayukta.

The government said that the entire proceedings leading to the appointment of Justice Mehta “suffered from the basic constitutional infirmity and procedural impropriety along with the exercise of malice in law”.

The petition said Mehta’s appointment was “void ab-initio” and violated the provisions of the constitution and the Gujarat Lokayukta Act, 1986.

The government sought suspension of the operation of the Gujarat High court judgments of Oct 10, 2011, and Jan 18, 2012, over the ombudsman’s appointment.

Challenging the high court judgment, the government said that the governor, under Section 3 of the lokayukta act, “is to act on the aid and advice of the council of ministers headed by the chief minister and is not required to exercise the said function in the individual and personal capacity and discretion”.

The petition said it was a well settled legal position that though, constitutionally, the executive power of the state was vested in the governor, in reality the governor was always supposed to be aided and advised by the council of ministers in exercise of all the functions under the constitution.

The petition said this position held good in the exercise of powers and functions referred to under Section 3 of the Gujarat Lokayukta Act, 1986.

In the appointment of Mehta as Lokayukta by Governor Kamla Baniwal, “there has never been any advice by the council of ministers for the appointment in question and that on this ground alone the action under challenge deserves to be held constitutionally bad”.

The government contended that the concept of consultation, as flowing from the Section 3 of the Gujarat Lokayukta Act, 1986, was not an empty formality and that the views and the say of the council of ministers could not be allowed to be suffocated.

The say of the state government in the appointment of the Lokayukta “has been given a total goodbye”, the petition said.

The petition assailed the high court judgment for using harsh expression for Chief Minister Narendra Modi and the government.

The high court judgment Wednesday said: “For preserving our democracy from being beleaguered and to prevent tyranny, it became absolutely essential for the governor to exercise the discretionary power under Article 163 of the Constitution and to appoint Justice (retd.) R.A. Mehta as lokyaukta, without or contrary to the aid and advice of the council of ministers headed by the chief minister, as their action and conduct were perilous to our democracy and rule of law.”

“The chief minister acted under the false impression that he could turn down the superiority and primacy of the chief justice’s opinion which was binding. The spiteful and challenging action demonstrates the false sense of invincibility,” the high court judgment said.

For seven years prior to Mehta’s appointment, the state government did not have an ombudsman.