Now, the matter will go to the Chief Justice

The legal battle over Governor Kamala Beniwal's appointment of the Lokayukta without consulting the government remained inconclusive, with a Division Bench of the Gujarat High Court delivering a split verdict on Monday.

While Justice Akil Kureshi held the appointment of Justice R.A. Mehta, a retired judge of the High Court, “constitutional and valid” and rejected the government's petition against his appointment, Justice Sonia Gokani, in her inconclusive order, said she “differed” with the conclusion drawn by her fellow judge, though she agreed with him on most other points.

After Justice Gokani completes dictating her order on Tuesday, the issue will go to the Chief Justice for a decision: whether to constitute a larger Bench or send the matter to a third judge.

Justice Kureshi, senior judge on the Bench, started dictating his judgment in the open court as soon as it assembled. He said the government's contention that the Governor had acted on her own without the aid and advice of the Cabinet could not be held right as it was a “peculiar case.” The “process of consultation” would be “deemed to be over” after the Chief Justice of the High Court, in an August 2 letter, “rejected” Chief Minister Narendra Modi's objections to Justice Mehta's choice and re-recommended his name to the Governor.

Pointing out that the post was lying vacant for the past eight years, Justice Kureshi said that because of the “deadlock” between the Chief Justice and the Chief Minister over the nomination of Justice Mehta, the opinion of the Chief Justice should be considered supreme.

After the last Lokayukta left the post in 2003, the government did not begin the consultation process till 2006; even when it began, there was no decision on the name, and no appointment was made till 2011. “We are of the view that the post of Lokayukta has an important role to play in the present socio-economic situation and should not lie vacant for a long,” Justice Kureshi said.

Justice Gokani said: “I do not completely agree with my fellow judge.” She was still dictating her judgment when the court rose for the day.

Going into the case history, she said the government had at least twice tried to find a suitable person for the post, but both proposals were rejected by the Governor.

Justice Gokani pointed out that the Chief Minister started the consultation process in 2006, and the Chief Justice sent a panel of names. From it, the name of Justice K.R. Vyas was finalised by the Council of Ministers and sent to the Governor, who returned the file disapproving of it, after three years, in 2009. Again in 2010, the government resumed the consultation and made a request to the Chief Justice to recommend Justice J.R. Vora for the post. This proposal was also rejected by the Governor.

Ms. Beniwal had appointed Justice Mehta as Lokayukta on August 25 this year, bypassing the government, on the recommendation of the Chief Justice and the concurrence of the Leader of the Opposition in the Assembly. The government promptly moved the High Court.

The post has been lying vacant since 2003, when Justice S. M. Soni, a retired judge of the High Court appointed during the Keshubhai Patel regime in 1998, stepped down.