“There is a law. We expect you that you would act in such a way that you would comply with the statutory requirements. Why is that you will have a pool of retired bureaucrats, why not others? Why only four names, why not have a larger pool of candidates?
“Are you not shutting out the meritorious younger candidates? You seems to be hell bent that no chief election commissioner or for that matter EC gets a complete six years tenure and it is against the statute,” Justice Joseph said.
Under the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 an EC can have a tenure of six years or up to the age of 65, whichever is earlier.
Justice Joseph said the point is that from the pool of a large number of officers the government has selected only those people who are never going to complete the six-year tenure.
“Why were the names sent to prime minister and not the council of ministers?” Justice Joseph asked.
Attorney General R Venkataramani responded, “Batch is one criteria, date of birth is other, seniority from the batch is other. Similarly, there are several other aspects which are being considered. Several discussions are done. Everything is not in black and white. There are several ways of appointment. Some files go to the Appointments Committee of Cabinet (ACC) through cabinet secretariat and some go directly to the prime minister”.
The bench, also comprising Justices Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar, clarified there should not be any misunderstanding that the court is against the government and it is only debating and discussing the issue.
The AG replied, “Yes, My Lord. It is a debate and I am bound to answer the court’s questions. If we start doubting every appointment, look at the implications for institution’s reputation”.
Justice Joseph said, “So, ultimately your point is that only those people need to be appointed who are on the verge of retirement, so that they don’t get a full six year period. Is that the law? You are violating the law and we are saying that clearly”.
The bench said it is not questioning or scrutinising the names but the process, and from the database the government has given, it appears there are several other officers who are younger.
Venkataramani said the existing system has been working for quite a long time and this is the convention which is being followed.
“We cannot conclude that there is quid pro quo because something has happened in a certain way,” he said.
Justice Roy said the court is struggling to find the reasons and logic as how these four names were selected by the law minister.
“You may be right in saying age category. We are testing the process. Now if age category is important, then there are 40 more names. How 36 names were left (out)?” Justice Roy said, adding the court wants to lighten the mood by saying the Attorney General’s note forgot to mention that Goel is gold medalist in mathematics and that election is all about numbers.
Venkataramani said he had left the point as he did not want to step into the shoes of decision makers.
Advocate Prashant Bhushan, appearing for petitioner Anoop Baranwal said, as a matter of fact, there are 160 officers from the same batch and many are younger than those who were considered. Had they been considered, they would have got a longer tenure as EC, he said.
Advocate Gopal Sankaranarayanan, appearing for advocate Ashwini Upadhyay, said it was good that Goel’s file was called for by the court as they came to know that the law minister also played in a role in the appointment of the EC.
“The Election Commission has now become a promotional cadre for bureaucrats. There is seniority basis through which they are appointed as per the convention but law is something different. Parliament, to ensure security of tenure, said the EC should have a six-year tenure but here a person is put for six months,” he said.
On Wednesday, Goel’s appointment as an EC came under scrutiny by the top court which sought from the Centre the original records pertaining to his appointment for perusal, saying it wanted to know whether there was any “hanky panky”.
On November 19, Goel, a Punjab cadre IAS officer, was appointed as election commissioner.
Goel would be in line to be the next CEC after incumbent Rajiv Kumar demits office in February 2025. His total tenure in the Election Commission would be of over five years.