In a big blow to the Narendra Modi government, the Supreme Court on Wednesday upheld the appointment of Justice (retd) RA Mehta as Gujarat Lokayukta by Governor Kamla Beniwal, while noting that the post lying vacant for nine years reflected a "very sorry state of affairs".
The apex court also faulted the governor saying she "misjudged her role" for appointing Mehta without holding consultations with the state government.
Sharp differences over Mehta's appointment between Modi and the governor had triggered a constitutional crisis in the state. The Modi government moved the Gujarat High Court contending that the governor could not appoint Lokayukta without aid and advice of the council of ministers.
The governor held her ground asserting that her decision was based on consultations with the Gujarat High Court Chief Justice.
A bench of Justice BS Chauhan and Justice FM Ibrahim Kalifulla dismissed Modi government's plea that the appointment was illegal as it was done without consulting it.
It also expressed displeasure over the post of Lokayukta remaining vacant for more than nine years.
"The facts of the case reveal a very sorry state of affairs, revealing that in the State of Gujarat, the post of the Lokayukta has been lying vacant for a period of more than nine years," the bench said.
The apex court, which said that Lokayukta can be made by the Governor only with the aid and advice of the Council of ministers, rejected the plea to quash Mehta's appointment saying that the chief minister had full information and was in receipt of all communications from the High Court Chief Justice.
"The present governor has misjudged her role and has insisted, that under the Act, the council of ministers has no role to play in the appointment of the Lokayukta, and that she could therefore, fill it up in consultation with the Chief Justice of the Gujarat HC and the leader of opposition. Such attitude is not in conformity, or in consonance with the democratic set up of government envisaged in our Constitution," the bench said
"The Governor consulted the Attorney General for legal advice, and communicated with the Chief Justice of the Gujarat HC directly, without taking into confidence, the council of ministers. In this respect, she was wrongly advised to the effect that she had to act as a statutory authority and not as the head of the state," the bench said.
"Be that as it may, in light of the facts and circumstances of the present case, it is evident that the chief minister had full information and was in receipt of all communications from the Chief Justice, whose opinion is to be given primacy as regards such matters, and can only be overlooked, for cogent reasons," the bench said.
The apex court said that objections raised by Modi have been duly considered by the Chief Justice and there is no need to set aside the appointment.
The Governor had on August 25, 2011 appointed Mehta to the post of Lokayukta, which had been lying vacant then for eight years.
The bench disapproved observations made against Modi by the high court which had said that the "pranks" played by the chief minister on the Lokayukta issue "demonstrates deconstruction of our democracy."
"We are of the view that the learned Judge, even if he did not approve of the 'my-way or the high way' attitude adopted by the chief minister, ought to have maintained a calm disposition and should not have used such harsh language against a Constitutional authority," the bench said.
The high court's verdict had been delivered by Justice VM Sahai after a division bench gave a split judgment on the legitimacy of the governor's action in Mehta's appointment.
Justice Sahai, who decided the matter as a third judge, had also pulled up Modi for creating a constitutional crisis and held that the governor had the discretionary power to make the appointment.