Collegium musical chairs: How an HC judge set to supersede one, got passed over instead

Justice Ajay Kumar Mittal | Punjab and Haryana High Court website
Justice Ajay Kumar Mittal | Punjab and Haryana High Court website

A.K. Mittal was named for Delhi HC CJ by CJI Khehar’s collegium, but the file never moved. Now he’s himself superseded by Surya Kant for Himachal CJ.

Chandigarh: In an apparent example of the opacity and inconsistencies that sometimes mark the appointment process in the higher judiciary, the Supreme Court collegium overturned its own decision to promote a high court judge six months after it had been approved.

The reason: Fresh doubts over his performance and a 14-year-old adverse intelligence report that had earlier been found to have no merit.

The judge in question is Justice Ajay Kumar Mittal, currently the first puisne judge – or the most senior judge after the chief justice – in the Punjab and Haryana High Court.

Previous collegium’s decision

In June last year, the Supreme Court collegium headed by then-Chief Justice of India J.S. Khehar had decided to appoint Mittal as chief justice of the Delhi High Court. The decision meant Mittal would have superseded his senior brother-judge, Justice S.S. Saron, who has since retired.

The collegium went ahead and decided to promote Mittal to the Delhi High Court even though two of the consultee judges – judges of the Supreme Court who were earlier in the Punjab and Haryana High Court – had opposed the move on the grounds that Mittal would supersede Saron.

Consultee judges are judges of the Supreme Court who are consulted about judges and lawyers in the high court/s they have served when they come up for elevation. The opinion of the consultee judges, while important, isn’t binding on the collegium.

However, inexplicably, Khehar did not forward the collegium’s recommendation to the Centre for processing the appointment. No reasons were given, and attempts to reach Khehar for a comment were not successful.

The tables then turned though, and somewhat dramatically.

New collegium turns the tables

On 10 January 2018, the Supreme Court collegium headed by Khehar’s successor Dipak Misra cleared the name of Punjab and Haryana High Court judge Surya Kant for appointment as chief justice of the Himachal Pradesh High Court.

Surya Kant is junior to Mittal, and the appointment ended up superseding him – something he was set to do six months earlier vis-à-vis Saron.

The collegium is said to have based its decision to overlook Mittal on a 14-year-old adverse report by the Intelligence Bureau (IB), given when his name was being considered for appointment to the bench of the Punjab and Haryana High Court, ThePrint has learnt.

This is odd as the same adverse report had not stopped Mittal’s appointment to the bench in 2004, as it was found to be without merit. It had, however, delayed the process. But one member of the Supreme Court collegium is said to have referred to the same report last month to object to Mittal’s elevation.

The same collegium member is also said to have found Mittal’s performance as judge unsatisfactory.

ThePrint has also learnt that two senior members of the collegium – justices Jasti Chelameswar and Ranjan Gogoi – have recorded detailed reasons for why Mittal should not be made chief justice.

Also, CJI Misra and Chelameswar, who are members of the present collegium that overlooked Mittal in January, were members of the collegium in June 2017, along with Khehar, when it had approved his appointment to the Delhi HC.

For the record, the minutes of the 10 January meeting of the Collegium uploaded on the Supreme Court website are silent about the 2004 IB report being used against Mittal.

“Justice Surya Kant is the senior puisine judge from Punjab & Haryana High Court and is serving in that high court since his elevation on 9 January 2004,” the minutes said.

“Having regard to all relevant factors, the collegium finds Justice Surya Kant suitable in all respects for being appointed as Chief Justice of the Himachal Pradesh High Court. The collegium resolves to recommend accordingly.”

“It is deemed necessary to add here that while making the above recommendation, we have also considered the name of Justice A.K. Mittal, who hails from the same High Court as does Justice Surya Kant,” the note added.

“Though Justice A.K. Mittal is senior to Justice Surya Kant in the seniority of judges of the Punjab & Haryana High Court, having regard to all relevant factors and since we consider Justice Surya Kant more suitable than Justice A.K. Mittal, we are not recommending name of the latter, for the present, for appointment as Chief Justice.”


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