Supreme Court judge Justice KM Joseph, who headed a bench which ruled that the appointment of the Chief Election Commissioner and ECs will be done by the President on the recommendation of a committee, on Monday recused from hearing a plea challenging appointment of Arun Goel as Election Commissioner.
A bench of Justice Joseph and Justice B V Nagarathna said, "List this matter before a Bench of which one of us (Justice Joseph) is not a member.
Before Justice Joseph recused from hearing, the top court questioned NGO 'Association for Democratic Reforms' for challenging Goel's appointment and asked it to show which rules were violated.
It said after the appointment of a person to a constitutional post, presumptions cannot be made that he will act unfairly, arbitrarily or will be "yes man".
The bench said the petition has relied on a March 2 verdict of the constitution bench headed by Justice Joseph which had ruled that the appointment of the Chief Election Commissioner and Election Commissioners will be done by the President on the recommendation of a committee comprising the prime minister, leader of the opposition in Lok Sabha and the CJI, to maintain the "purity of election".
In the lengthy verdict, the five-judge bench had said it was mystified as to how bureaucrat Goel applied for voluntary retirement on November 18 last year if he was not aware about the proposal to appoint him as an Election Commissioner.
During the hearing on Monday, advocate Prashant Bhushan, appearing for the NGO, said the appointment process of Goel was "malafide" and "arbitrary" and four officers were selected out of a pool of 160 across the country and many of them were younger to Goel.
He said the selection process adopted by the government was questionable.
Referring to the March 2 verdict, Bhushan said that this court has also dealt with the issue and made remarks on the appointment process of this very gentleman.
Justice Joseph said that the discussions in the verdict was with regard to the propriety and remarks like a person appointed to the constitutional post should not be "weak-kneed", "yes man" were all for the future appointments.
"At that time, when the appointment was made, there was no violation of any law," the bench said, after perusing the petition and grounds for challenging the appointment of Goel.
Justice Nagarathna said, "All your arguments like there was 'tearing hurry', 'haste' and alleged malafide are all right but show us one single rule or law which was violated. You are seeking a writ of quo warranto for quashing the appointment of a person, to a constitutional post, which should be in violation of a law or a rule." Bhushan submitted that they (the government) had handpicked this person and had not analysed other officers of the same 1985 batch, who were even younger than him.
“He was granted voluntary retirement from service in couple of days which in normal course could have taken three months,” he said, adding that rule of institutional integrity was broken.
The bench said that grant of voluntary retirement to this man is not subject matter of PIL.
Bhushan said that this court had in 2011 quashed the appointment of PJ Thomas as Central Vigilance Commissioner because a charge sheet was filed against him in a criminal case.
The bench said that this is not the case here to which Bhushan said he is not saying that this is the case here but the process of appointment to a constitutional post like CVC was vitiated and the top court had quashed the appointment.
Justice Joseph said that he may agree with Bhushan on a narrow point that what were the criteria of selecting four officers from a pool of 160 officers across the country from which Goel was selected for appointment as election commissioner. Justice Joseph, after discussing with Justice Nagarathna, said that he would not like to hear the matter and ordered for its listing before another bench, which he is not part of.
The NGO has challenged Goel's appointment as Election Commissioner claiming it is arbitrary, and violative of institutional integrity and independence of the poll body.
It has sought the constitution of a "neutral and independent committee" for the appointment of members of the Election Commission.
The plea alleged that the Union government and the ECI have through their acts of "omissions and commission" participated in a carefully orchestrated "selection procedure" for their own benefits.
"The writ petition is being filed in public interest challenging the appointment of Arun Goel as Election Commissioner vide notification dated November 19, 2022, on the ground that the appointment is arbitrary and violative of institutional integrity and independence of Election Commission Of India...," the plea said.
The top court in its March 2 verdict had noted that a vacancy in the post of Election Commissioner arose upon the appointment of Rajiv Kumar as the Chief Election Commissioner with effect from May 15, 2022.
The apex court said the appointment to the post of Election Commissioner was made apparently on the basis that there was no hindrance to the making of the appointment as there was no specific law.
It had taken note of the submission by the Centre that approval was sought on November 18, 2022 for the appointment of one Election Commissioner and on the very same day, drawing upon the database of IAS officers, serving and retired, in the position of secretary to the Government of India, it was accessed.
"On the same day, i.e. on November 18, 2022, a note was seen put-up, wherein the Law Minister had suggested the panel of four names for the consideration of the Prime Minister and the President..."
"The appointee, it was noted, was to superannuate in the month of December, 2022 and had taken voluntary retirement, was found to be the youngest of the four members of the panel...Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified. We are a little mystified as to how the officer had applied for voluntary retirement on November 18, 2022, if he was not in the know about the proposal to appoint him," the top court said in its verdict.
The apex court had said an appointee to the post of Election Commissioner or Chief Election Commissioner should have a period of six years as laid down in law as it would enable the officer to have enough time to gear himself to the needs of the office and assert his independence.
