New Delhi: Why the “tearing hurry” or “haste” in appointing former Indian Administrative Service (IAS) officer Arun Goel to the post of Election Commissioner, the Supreme Court asked the central government Thursday.
As arguments concluded on a bunch of petitions calling for an independent and transparent mechanism to appoint election commissioners, the top court kept asking questions on the selection process that the government followed in the case of Goel.
In the same breath, Justice K.M. Joseph, who led the Constitution bench, clarified that his query was not to start a confrontation with the government.
The court also enquired how Law Minister Kiren Rijiju shortlisted the four names that were then submitted to the prime minister for approval.
Goel, a 1985-batch IAS officer of the Punjab cadre who was among the four candidates, was appointed as election commissioner on 21 November — three days after he took voluntary retirement from service. He was due to retire on 31 December.
After perusing Goel’s appointment file, the bench remarked that the entire process, including the evaluation of candidates and Goel’s selection, was completed within 24 hours.
The court had sought Goel’s file after hearing that he was appointed three days after his resignation.
“This (file) was moved on 18 November, then the names were examined. Then the Prime Minister comes in.. is it (usually) done in such haste? With such tearing urgency?” Justice Joseph asked Attorney General R. Venkataramani, who appeared for the Centre.
The judge also felt the appointment was not according to The Chief Election Commissioner And Other Election Commissioners (Conditions of Service) Act, 1991, which mandates that each poll panel member “shall hold office for six years”.
By shortlisting candidates who have less time to retire, the government was flouting the law, Justice Joseph added.
On his part, Venkataramani resisted judicial scrutiny of the appointment and said there was no “trigger point”, inviting the top court’s intervention in the current system to select an election commissioner.
He said in his opinion, the court could only fill the gaps, if any exist, adding that these “gaps cannot be imputed in an abstract way,” as done by the petitioner. “There is a process (for an appointment). There is a convention. There is a method,” he contended.
Rebutting the arguments, senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners, said there were many judgments where the top court rolled out guidelines without there being “a trigger point”.
With both sides closing down arguments, the bench reserved its verdict on the batch of petitions that suggested a Collegium-like system used to appoint judges to select Election Commissioners.
The top court is currently hearing petitions that have mooted the involvement of the Chief Justice of India in the selection process to insulate the Election Commissioner’s office from political influence.
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Court expresses ‘worry, anxiety’ over appointment
In his arguments, senior advocate Sankaranarayanan said there were many from later civil service batches who could have been appointed. This would have also meant compliance with the law that warrants an election commissioner to have a tenure of six years in office, he argued.
On Thursday, the court examined records on Goel’s selection placed before it and raised many apprehensions over the procedure followed to choose him.
Apart from Justice Joseph, Justices Ajay Rastogi and Hrishikesh Roy were vocal about their “worry” and “anxiety” over the absence of a clear answer from the government to the court’s queries.
The other bench members were Justices Aniruddha Bose and C.T. Ravikumar.
“We know that where there is a will, there is a way,” Justice Rastogi said, commenting on the “superfast” appointment of Goel. The judge asked the Attorney what “weighed on the government” to speed up the process, especially when the post was vacant since 15 May.
‘How was appointment cleared in 24 hours’
On Wednesday, the court took exception to Goel’s hiring, which came at a time when it was still hearing the petitions and also looking into an interim application to prevent the government from making any fresh appointment.
Although there was no order of this sort, the bench felt it would have been appropriate for the government to make the appointment.
Justice Rastogi asked the law officer how the notification for Goel’s appointment was cleared within 24 hours of its recommendation. “What kind of evaluation was done in just 24 hours?” asked the judge.
In his response, the Attorney General replied that all due processes were followed while considering and finalising Goel’s name.
He told the bench: “These questions (on appointments) will crop up. How many appointments in public offices happen in 12 or 24 hours? Can we get into all such instances?”
The court remained firm. “Tell us how he was chosen ahead of three others,” Justice Joseph asked.
Justice Roy wondered whether it was normal for civil servants to take voluntary retirement. “Does it happen like this normally?” he asked.
Justice Joseph also said that while the law contemplated a direct appointment to the position of Chief Election Commissioner (CEC), the government had made it a “promotion-based” one. He added that direct appointments were being made until 1989.
The judge said: “What perhaps the founding fathers contemplated was that you should have a CEC who may hold the office for six years, independently.”
While records showed that the law provides for a six-year tenure each for the Chief Election Commissioner and the two Election Commissioners, Justice Joseph said, the appointments done so far show that the cumulative tenure of CEC and EC is six years.
“You haven’t picked up people who will get an ordinary period of six years as EC,” Justice Joseph observed.
He further noted that the government was using the provision in the law to make appointments of civil servants, who are on the verge of retirement. The law says an election commissioner has to retire if he reaches 65.
“Can this be done?” the judge asked.
(Edited by Uttara Ramaswamy)
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