What will Guv do if Chief Justice,govt differ,asks HC

A division bench of the HC raised the query before issuing notices to the respondent parties in the petition challenging the appointment of Justice (Retired) R A Mehta as Lokayukta. The next hearing will take place on September 21.

The government has challenged the appointment while calling it a unilateral and unconstitutional act. The registrar general of HC,the principal secretary to the Chief Justice of HC and Justice (retd) Mehta are the respondents to the petition. Advocate General Kamal Trivedi and Government Pleader Prakash Jani are appearing on behalf of the petitioners — the chief secretary and Minister of State (Law) Pradipsinh Jadeja.

Justice Mehta’s appointment came after the HC Chief Justice proposed his name to the government and the latter did not agree to the same.

Trivedi argued that this was an unprecedented situation where the government was confronting the Governor on whom the executive powers of the government rests. He added that the government had challenged the decision of Governor Kamla Beniwal because she had acted beyond the provisions of the Constitution. The government also argued that the Governor cannot act in discretion except on certain demarcated issues.

Emphasising the point that the appointment could not have been done without the aid and advice of the Council of Ministers,Trivedi argued in detail on the rules for the conduct of the government for administration,which included the appointment of Lokayukta. He said it had been the convention that the government initiates the process to appoint the Lokayukta and at the end of the consultation process for the same,the Governor acts ‘merely’ as the authority to issue warrant for the particular appointment under the aid and advice of the Council of Ministers.

He further said that the appointment of justice (retd) Mehta was made without even consulting the Council of Ministers and therefore it needed to be quashed.

This was opposed by two petitioners,Bhikha Jethava and Rajesh Mankad.

Appearing for Mankad,advocate Mukul Sinha questioned the maintainability of the petition arguing to the effect that the government and the Governor cannot be split into two. And so,the government cannot file the petition at all. He also argued that since the Governor who passed the appointment order was not party to the petition,no writ could be issued to reject the impugned order.

The issues

The important issues to be decided by the court in this petition,as the court observed,is the nature of power of Governor in appointing Lokayukta under the Lokayukta Act.

The court also observed that it is to be decided whether in appointing the Lokayukta,the Governor is bound by the views of the Council of Ministers in every case or there is situation where she can make the appointment without the aid and advice of the Council of Ministers. The court also ordered to decide the maintainability of the petition.

Advocate General’s arguments

Pointing towards the conduct of the Governor’s office over the issue,Kamal Trivedi said the government had initiated the process to appoint Lokayukta in 2006 and had proposed to appoint Justice K R Vyas as the Lokayukta after getting approval of the CJ of HC. The Governor’s office,he added,returned the file to the government in 2009.

The government also pointed out that neither the Leader of Opposition (LoP) nor the Governor’s office cooperated to complete the process to appoint the Lokayukta while adopting identical stand over the issue. During the correspondence with the government,the state counsel argued,both the LoP and the Governor’s office maintained that the former could not have any say in the process.

Girish Patel’s arguments

Arguing on behalf of Bhikha Jethava,senior counsel Girish Patel said the Governor has made appointment only after the government did not do so for more than seven years. He pointed out the statutory limitation aspect to the Lokayukta’s functioning whereby,the latter cannot probe into any complaint which is older than five years before his appointment. Patel said the government cannot frustrate the statutory provisions and in such an exceptional situation,the appointment of Justice Mehta should be upheld in public interest.

Objection against advocate general

During the hearing,the role of Advocate General Kamal Trivedi as the constitutional office bearer came under scanner. Lawyer Patel objected to the AG’s appearance on behalf of the government against the Governor. Patel argued that AG is appointed by the Governor under Article 165 of the Constitution and is duty bound to give legal advice to the government and to perform any legal duty assigned to him by the Governor. In such case,Patel argued,the AG was supposed to give advice to the Governor and but he appeared against her. Justice Kureshi,speaking on behalf of the bench,observed that the court would consider the same at an appropriate stage.

‘CJ did not give consent to Justice Vora’s name’

In sharp contrast to the government’s argument with reference to the then proposal to appoint Justice (retired) J R Vora getting consent of the HC Chief Justice,the CJ has declined to have given his consent. Appearing on behalf of the CJ,advocate Shalin Mehta said the CJ had not given consent to the name of Justice Vora and that he had written 4-5 letters to the government conveying his views that the candidate was not suitable. Mehta also refuted the allegation that the CJ did not consider the concerns of the government while proposing the name of Justice R A Mehta.