Noting that the file relating to the appointment of former IAS officer Arun Goel as Election Commissioner had moved “in the shortest possible time, superfast… not travelled even 24 hours”, the Supreme Court asked the Centre Thursday if there was “any haste or tearing urgency”.
A five-judge Constitution Bench, comprising Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, perused the file relating to Goel’s appointment and inquired how the Union Law Minister had shortlisted the names of four civil servants for recommendation to the Prime Minister for appointment to the vacant EC post.
Attorney General R Venkataramani told the bench that the four names were culled out from the database of civil servants maintained by the Department of Training and Personnel (DoPT).
The bench asked “how did the Law Minister pick up these four names from the database?… Given the vast reservoir of senior officers you have, what is the criteria?”.
Justice K M Joseph said, “We are only on the process of selection, not on any individual”, adding “in fact we also fairly notice that this person who is selected is a gold medalist in mathematics… a brilliant academic record he has.”
The bench is hearing petitions seeking a Collegium type body for appointing ECs and the CEC.
The court said the file was cleared in one day and asked if there was any haste or tearing urgency.
“It was put up on November 18. We find that it moved the same day. It then goes to some officials. Then the PM recommended the name the same day… Not for any kind of confrontation, but was there any kind of haste or tearing urgency,” Justice Joseph asked, adding that in government offices, files usually move slowly.
“This vacancy became available in May… Can you show what prevailed upon the government to initiate the process in a manner that everything is done in the shortest possible time, superfast. The same day process, the same day clearance, the same day application, the same day acceptance and the same day appointment… The file has not travelled even 24 hours. What kind of evaluation was there?” Justice Rastogi said.
Underlining that there was no haste shown, the AG said, “If Your Lordships were to go into that question, I must produce all those lists of appointments from 2015 onward because every time matter has moved within 2-3 days. Maximum 3 days time.”
Pointing out that there are many instances of appointment in public positions happening within 24 hours or even 12 hours, he asked, “Are we finding a fault?”
Stating that there is an element of confidentiality in the appointments process to such posts, the AG said, “There is nothing to hide. Even before the matter was heard, I was asked if there is any impediment in going about the appointment. I thought about it and I didn’t find any injunction or stay or something like that and said there is no reservation on that. And precisely they have quoted that there is no reservation. That is how it went ahead. It’s probably about a week’s time for my consultations. So the speed part of it is also after consultation with me. Therefore, I don’t think Your Lordships will smell any rat in it.”
On queries how the Law Minister picked up the names, the AG said, “There are two steps involved here. One, a panel is prepared on the basis of the DoPT database, who would retire, at what point of time, what would be the tenure available to them… This database of all civil servants is publicly available.”
“Batch is one criteria. Among batches, who is senior. Among them, who probably has the required profile and suitability …So among the batch people, will somebody have a longer tenure? That’s another consideration. If that consideration is wrong, then I think no other consideration can help us. It is, therefore, a question of who will fill up as early as possible the requirements of law.”
The bench also posed questions on the tenure of the EC and Chief Election Commissioner (CEC).
It pointed out that The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991, states that the EC and CEC “shall hold office for six years”. And that by choosing candidates who do not have six years service remaining, the government, it said, is flouting the law.
Justice Joseph said that instead of giving both the EC and CEC separate terms of six years each, what is being done now is to give a candidate a total tenure of six years as EC and CEC.
“It’s against the law. You are violating it (the relevant provision in the Act). We are telling you openly. They are entitled to six years,” he said.
The AG said that what is being followed is a time-tested convention according to which the senior among the two Election Commissioners becomes CEC who will remain in office till he attains the age of 65. Going by the separate six-year term will lead to a situation where the incumbent continues in office even after 65, he pointed out.
“But that is the will of the people,” Justice Joseph said, adding “what guides us, binds us is the will of the people speaking through Parliament. The law is clear guidance. The law says shall have 6 years. So ordinarily your effort should be to see that law is observed”.
The AG said, “With a great amount of reservation, I say this, if you start doubting every small step taken in the appointment of such important positions, look at the implications for the integrity and the independence of the institution outside. What are we talking about?”.
Newly appointed Election Commissioner Arun Goel (File) 
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