New Delhi: A five-judge bench of the Supreme Court took exception to the Centre’s decision to appoint Arun Goel as an election commissioner, asking how it was done barely three days after he took voluntary retirement from service.
It also directed the government to produce files pertaining to Goel’s appointment.
The Constitution bench headed by Justice K. M. Joseph observed Wednesday that it would have been appropriate for the government not to go for hiring at a time when petitions to devise an independent appointment mechanism for the three-member Election Commission and seeking an interim order against such an appointment were pending with the court.
Before assuming charge as the new election commissioner on 21 November, Goel was the secretary of the Ministry of Heavy Industries.
“Normally for voluntary retirement service, the employee must give three months’ notice,” Justice Joseph remarked.
Advocate Prashant Bhushan, the lawyer for one of the petitioners, doubted if Goel had served the notice and, hence, said the court must ask for the records.
The court brushed aside Attorney General R. Venkataramani’s objections against Goel’s appointment being “juxtaposed” into the case where the bench is looking into the larger issue.
“We don’t think it is a matter where you should be withholding information. We are living in an open democracy,” Justice Joseph said.
“What is the mechanism by which this officer was picked up, Mr Attorney General? Can it be made when the matter was being considered by this court? The appointment was made when the matter was being considered by this court. When there is an application against the appointment, when that matter is being heard by the Constitution bench, it would have been more appropriate, if the appointment hadn’t happened.”
The bench will take up the matter on 24 November.
The court’s query on the appointment came a day after it made verbal remarks about having an independent and the least intrusive appointment system to choose Election Commissioners. The bench had mooted the idea of having the Chief Justice in the appointment committee so that “no mess-up” (in appointments) can happen.
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The election commissioner’s post was lying vacant since May, after the present Chief Election Commissioner, Rajiv Kumar, was promoted to head the poll panel following the retirement of his predecessor Sushil Chandra.
Goel, a former Punjab cadre IAS officer, had taken voluntary retirement on 18 November.
Earlier, he had served as the secretary in the Ministry of Culture, was the vice-chairman of the Delhi Development Authority and had worked in various capacities in the ministries of finance, urban development, and labour and employment.
On Wednesday when the top court resumed hearing the petitions, Bhushan brought the new appointment to its notice. “The latest appointment of Mr Arun Goel has been made by giving him voluntary retirement,” he pointed out.
“Everybody who has been appointed as Election Commissioners are retired people. But he was a sitting secretary in the government. (On) Thursday, this court heard the matter and on Friday, he was given voluntary retirement. His appointment order was issued Saturday or Sunday, and Monday he started working,” Bhushan elaborated.
The counsel questioned the “process, procedure and rush” to appoint Goel. He further highlighted that the position was vacant since May and that the petitioners’ application seeking an interim order against such an appointment was pending.
Venkataramani “strongly” opposed Bhushan’s argument and claimed there “is no design” behind the appointment, as was projected by the lawyer. But the bench was adamant.
Justice Joseph expressed concern over the appointment being made at a time the court was seized of the matter. “We heard the case last Thursday. At that stage, Mr Bhushan said there is an interim application. Then the next hearing takes place yesterday (sic). Therefore, we would like you to produce the files relating to the appointment of this officer. So that if you are in the right, as you claim, that there is no hanky-panky, then there is nothing to fear,” he asserted.
Venkataramani justified the appointment on the ground that there was no injunction by the court against the same.
But, the top court insisted that it was simply asking the government to produce the files, unless there were legitimate objections to it.
“There was no such order, but the application was there. Anyway, let that go. We are not sitting on judgment over the appointment. But we would like to know (the mechanism). This will be an eye-opener. If everything is hunky-dory, everything is going on smoothly as you claim, you have nothing to fear,” Justice Joseph said.
On seeing the Attorney General’s vehement objection. Justice Joseph told him that the litigation before court was not adversarial and that the bench wanted to peruse the file “out of curiosity”. Another member of the bench, Justice Hrishikesh Roy, told the law officer that he “may be over-reading the mind of the court”.
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‘No need to include CJI on panel to appoint EC’
Meanwhile, the Centre opposed the bench’s suggestion to include the Chief Justice of India in the panel to appoint Election Commissioner.
In its arguments against the petitions, the government told the court that barring a few isolated instances, the Election Commission’s independence and its work had come in for even international applause.
Defending the existing system of appointment, additional solicitor general Balbir Singh gave examples of “stray instances” in judicial appointments and wondered if aberrations are so grave that they would warrant judicial intervention.
“This court has got a foolproof system as far as appointment of judges are concerned. But there are stray instances when things go wrong,” Singh added.
However, Justice Ajay Rastogi, one of the bench members, told the law officer that the system to appoint judges has changed from time to time. “There was a time when selection was made by the Chief Justice to the state, to the lawyer to join (the bench). But that system, at a later point of time, raised a question mark. Then the court introduced, what it thought, was a new fair and open (collegium) system,” he said.
But in the case of an Election Commissioner, the same mechanism is being followed for over 70 years. “We are not saying the system is not correct. We don’t want to wait for a trigger point. We think the system should be transparent to avoid complaints,” Justice Rastogi added.
(Edited by Anumeha Saxena)
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