Two days after the Supreme Court Collegium recommended the appointment of Punjab & Haryana High Court judge Surya Kant as Chief Justice of the Himachal Pradesh High Court, Supreme Court judge Justice A K Goel sent a letter to Chief Justice Dipak Misra putting on record his “respectful disagreement with the proposal”.
Justice Goel’s opinion was sought by the CJI as he had served in the Punjab and Haryana High Court.
In legal parlance, Justice Goel is a “consultee judge” — consultee judges are SC judges who need not be members of the Collegium but their views are taken regarding the elevation of judges from the High Courts they have served earlier. The opinion of the consultee judges, while important, isn’t binding but is sent to the government along with the recommendation.
The nomination of Justice Surya Kant sought to supersede Justice A K Mittal, his brother judge in the Punjab & Haryana High Court who is senior to him. This was noted in the minutes of the January 10 meeting of the Collegium uploaded on the Supreme Court website: “Though Mr Justice A K Mittal is senior to Mr Justice Surya Kant in the seniority of judges of the Punjab & Haryana High Court, having regard to all relevant factors and since we consider Mr Justice Surya Kant more suitable than Mr Justice A K Mittal, we are not recommending name of the latter, for the present, for appointment as Chief Justice.”
The Indian Express has learnt that in the January 10 meeting of the Collegium, which consists of the three seniormost judges of the Supreme Court — Chief Justice Misra, Justice Jasti Chelameswar and Justice Ranjan Gogoi — for recommending names for High Courts, the name of Justice Mittal was first discussed. Two members of the Collegium opposed his name wherein the name of Justice Surya Kant was proposed instead which was unanimously accepted and signed for recommendation to the government.
On the query about the grounds for supersession of Justice Mittal, one member of the Collegium said that he would submit a note explaining his reasons for the supersession on the record.
On January 11, that member wrote the note to the Collegium revisiting the sequence of events leading to the initial nomination of Justices Mittal and Surya Kant to the High Court in 2003. During that period, the note adds, Intelligence Bureau had submitted an adverse report on the initial nomination of Justice Mittal.
Justice Mittal was eventually nominated to the High Court after a fresh reconsideration. The note adds that “in view of the adverse IB report in respect of Justice A K Mittal which does not appear to have been verified in the manner required, I am of the view that it would be more appropriate to recommend Justice Surya Kant in preference to Justice A K Mittal for elevation of Chief Justice of a High Court.”
In a hand-written note, another member of the Collegium concurred with this view and referred to the events of April 2017 when the name of Justice Mittal was approved by the Collegium for the Chief Justice of Delhi High Court.
Sources said that in April 2017, the Collegium, headed by then Chief Justice J S Khehar, had favoured Justice Mittal’s appointment to the Delhi HC. It meant Justice Mittal would have superseded his senior brother-judge, Justice S S Saron, who has since retired.
Chief Justice Kehar then sought the opinion of the consultee judges, two of whom — Justices Gogoi and A K Sikri, both serving judges of the Supreme Court who were earlier in the Punjab and Haryana High Court — opposed the move in writing. Another consultee judge, Justice Goel, however, agreed with the proposal.
Sources said that the views of the consultee judges were never placed before the Collegium and Chief Justice Khehar did not forward the collegium’s recommendation to the government for processing the appointment.
A day after the meeting of the Collegium on January 10 this year, Chief Justice Misra sought the view of the consultee judges in the Supreme Court.
With Justice Gogoi having become part of the three-member collegium, the opinions of Justices Sikri and Goel were diametrically opposite. Justice Sikri, who opposed Justice Mittal’s nomination last year, backed the nomination of Justice Surya Kant.
Justice Goel opposed the proposal to nominate Justice Surya Kant as Chief Justice of Himachal Pradesh High Court.
In a letter sent to Chief Justice Misra on January 12, Justice Goel said that he was in “respectful disagreement with the proposal” that “the Collegium considered Mr Justice Surya Kant more suitable than Mr Justice A.K. Mittal”. He also referred to “complaints” against Justice Surya Kant received in March 2017 and his recommendation to the then Chief Justice Khehar to get “a thorough enquiry” conducted.
Incidentally, the proposed elevation of Chief Justice of Uttarakhand High Court K M Joseph to the Supreme Court and the direct appointment of senior advocate Indu Malhotra to the highest court is pending with the Government despite the unanimous recommendation of the Collegium.