In 2021, a writ petition was filed for appointment to fill a vacancy of election commissioner which had arisen on 15May 2022 by a Committee. The Bench commenced hearing of these cases on 17Nov 2022. The matter stood posted to 22Nov 2022. It would appear that on 18Nov 2022, the vacancy of Election Commissioner came to be filled up by the appointment of one Arun Goel.
This appointment was attacked by Prashant Bhushan, Counsel appearing for the petitioner, by contending that when the petitioner had moved an application, seeking interim relief relating to appointment, it was not open to the Respondent-Union to make the appointment.
Supreme Court thereupon called upon the Union Govt to produce the files relating to the appointment. It was stated in the file that a vacancy in the post of Election Commissioner arose upon the appointment of Shri Rajiv Kumar as the Chief Election Commissioner w.e.f. 15May 2022.
No specific law has been made under Article 324. (This article discusses the provisions related to formation, and power of Election Commission of India.) A convention is put forward, which consisted of appointing senior Members of the Civil Services, other serving or retired Officers of the rank of Secretary to the Government of India/Chief Secretary of State Government. The convention further comprised of the appointment of the senior-most Election Commissioner as the Chief Election Commissioner so far.
After perusal of the files, the court found that the respondent (Union Gov) was aware of the pendency of Writ Petition (Civil) No. 104 of 2015 apart from the other Writ Petitions. The appointment had been made apparently on the basis that there was no hinderance to the making of the appointment. Approval was sought on 18Nov 2022 for the appointment of one Election Commissioner. 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.
The court found four names, which included at the top of the list, the present appointee. Three other names were also considered by the Minister of Law and Justice. One of the Officers was from Andhra Pradesh and belonged to the 1983 Batch. The third Officer empanelled belonged to the Telangana State and he belonged to the 1983 Batch and the fourth Officer belonged to the Tamil Nadu cadre and belonged to the 1985 Batch. The present appointee (Arun Goel) belonged to the Punjab Cadre and was of the 1985 Batch.
On the same day, i.e., on 18Nov 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. Therein also, the absence of a law and the convention, has been noted. The court further found that three of the Officers mentioned had superannuated during the last two years or so. 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. It was recommended to the Prime Minister that considering his experience, age, profile and suitability, the current appointee may be considered.
On the very same day again, the Prime Minister recommended the name of the present appointee. On the same day again, an application is seen made by the appointee in regard to voluntary retirement and accepting the same, again, w.e.f., 18.11.2022, and waiving the three months period required for acting on the request of voluntary retirement, the Officer’s request for voluntary retirement came to be accepted by the Competent Authority. Not coming as a surprise, on the same day, his appointment as Election Commissioner was also notified.
The court was mystified as to how the officer had applied for voluntary retirement on 18.11.2022, if he was not in the know about the proposal to appoint him. Whether that be, the court noticed that 18.11.2022 was a Friday and very next day, after the Court had directed the case to be listed to 22.11.2022, for considering the matter.
In regard to this appointment, the salient features may be noticed. The vacancy was subsisting from 15.05.2022. The Constitution Bench held a preliminary hearing on 17.11.2022. It was while so on the next day, i.e., 18.11.2022, when an interim application was also pending consideration, all the procedures commencing with the proposal, processing of the same at the hands of the Minister for Law, the further recommendations of the concerned Officers, the recommendation of the Prime Minister, the acceptance of the application of the appointee seeking voluntary retirement, waiving the three months period and the appointment by the President under Article 324(2), which came to be notified, took place in a single day.
No doubt, there was no interim Order, restraining such appointment but, at the same time, writ petition 2021, seeking a direction to make appointment to the vacant post by an independent Body, was pending consideration.
(Reference from ‘Anoop Baranwal v. UOI (2023)’)