The Curious Case Of Irregular Application Of Professional Income As Criterion For Considering Elevation By Collegium

The collegium has singularly rejected a candidate, who otherwise could have been meritorious and deserving, only because he did not qualify the income criterion, whereas exactly similarly situated candidates have been recommended by the very same collegium. The criteria for one shall be the criteria for everyone is the rule of law. Any departure from this shall be treated as arbitrary.

The efforts of Justice Chelameshwar towards transparency have borne fruits and there is a dedicated tab on the Supreme Court’s website titled ‘Collegium Resolutions’, wherein the collegium shares various resolutions passed by it on the website. The resolutions reveal many interesting details, including how the evaluation actually takes place. One such interesting detail came to light when only on the basis of less professional income, an advocate from Calcutta Mr. Piush Chaturvedi’s candidature was rejected. I wrote an article[1] then as to how and why this criterion deserved a revisit.

There appears, however, from subsequent collegium resolutions that this criterion was revised on 13.05.2017 itself. Its application, however, is something which attracts attention. A list of dates will probably make it clear as to how the criterion has not been uniformly applied and its use has been irregular:

 

Six things emerge from the above-mentioned table –

• There was a criterion for minimum average net professional income. The said criterion was revised on 13.05.2017. This revision was duly communicated to all high courts.


• Advocate Piush Chaturvedi (Calcutta HC), Advocate Umesh Amritlal Trivedi (Gujarat HC), Advocate Parth Prateem Sahu (Chhattisgarh HC) and 5 other advocates from Calcutta HC were recommended by their respective HC collegium before the income criteria was revised i.e., before 13.05.2017.


• All of their respective recommendations were considered separately by the SC collegium.


• Undoubtedly, the average net professional income of Piush Chaturvedi, advocate Umesh Amritlal Trivedi, advocate Parth Prateem Sahu and few amongst the five members of the bar from Calcutta HC was less than the criteria prevalent before 13.05.2017.


• The SC collegium categorically gave findings on this.


• While advocate Umesh Amritlal Trivedi, Advocate Parth Prateem Sahu and all the five members of the bar from Calcutta HC were recommended by the SC collegium. Mr. Piush Chaturvedi was left out and rejected solely on the ground of not fulfilling net professional income criteria.

Let me quote from the resolutions –

Collegium Resolution dated 04.12.2017 pertaining to Mr. Piush Chaturvedi records as follows:

“The above recommendation has been unanimously made by the then Chief Justice of the Calcutta High Court on 3rd November 2016 in consultation with his two senior-most colleagues.

… As regards Shri Piyush Chaturvedi (mentioned at Sl. No. 1 above) his average professional income is well below the prescribed minimum professional income limit. As he does not qualify the income criterion, the proposal for his elevation to the High Court does not inspire confidence and is, therefore, rejected...”

Collegium Resolution dated 26.03.2018 pertaining to five other members of Calcutta HC records as follows:

“The above recommendation has been unanimously made by the then Acting Chief Justice of the Calcutta High Court on 4th May, 2017 in consultation with her two senior-most colleagues.

…While considering the above recommendations we have taken due note of the fact that net professional income of some of the recommendees is less than the prescribed income limit. In this regard, we consider it necessary to mention that the revised income criterion was made known to the High Courts including the Calcutta High Court, subsequent to the date of these recommendations.

In view of the above, the Collegium resolves to recommend that S/Shri (1) Biswajit Basu, (2) Smt. Amrita Sinha, (3) Dr. Sutanu Kumar Patra, (4) Abhijit Gangopadhyay, and (5) Jay Sengupta, Advocates, be appointed as Judges of the Calcutta High Court. Their inter se seniority be fixed as per the existing practice.”

Collegium Resolution dated 19.04.2018 pertaining to Mr. Parth Prateem Sahu records as follows:

“…While considering the above recommendation of Shri Parth Prateem Sahu, Advocate (mentioned at Sl. No. 2 above) we have duly taken note of the fact that average net professional income is less than the prescribed income limit. In this regard, we consider it necessary to mention that the revised income criterion was communicated to the High Courts including the Chhattisgarh High Court on 13th May 2017 whereas the instant recommendation was made earlier i.e., on 3rd May, 2017.

…….. In view of the above, the Collegium resolves to recommend that (1) Shri Parth Prateem Sahu, Advocate and (2) Shri Gautam Chouradia, (3) Smt. Vimla Singh Kapoor, and (4) Smt. Rajani Dubey, Judicial Officers be appointed as Judges of the Chhattisgarh High Court. Their inter se seniority be fixed as per the existing practice.”

Collegium Resolution dated 19.04.2018 pertaining to Mr. Umesh Amritlal Trivedi records as follows:

“……While considering the above recommendation of Shri Umesh Amritlal Trivedi, Advocate (mentioned at Sl. No. 1 above) we have duly taken note of the fact that his average net professional income is less than the prescribed income limit. In this regard, we consider it necessary to mention that the revised income criterion was communicated to the High Courts including the Gujarat High Court on 13th May 2017 whereas the instant recommendation was made much earlier i.e., on 14th December, 2016.

…..In view of the above, the Collegium resolves to recommend that (1) Shri Umesh Amritlal Trivedi, Advocate and S/Shri (2) Ajaykumar Chandulal Rao, (3) Vishnukumar Prabhudas Patel, (4) Vireshkumar Bavchandbhai Mayani, and (5) Dr. Ashutosh Pushkerray Thaker, Judicial Officers, be appointed as Judges of the Gujarat High Court. Their inter se seniority be fixed as per the existing practice.”

Subject to my limits of comprehension, the income criterion has been clearly applied non-uniformly and irregularly as against Mr. Piush Chaturvedi. The collegium has singularly rejected a candidate, who otherwise could have been meritorious and deserving, only because he did not qualify the income criterion, whereas exactly similarly situated candidates have been recommended by the very same collegium. The criteria for one shall be the criteria for everyone is the rule of law. Any departure from this shall be treated as arbitrary. I hope the collegium will reconsider its decision to elevate Mr. Piush Chaturvedi. Fingers crossed!

[1]http://www.livelaw.in/professional-income-criteria-rejecting-elevation-reconsidered/

Namit Saxena is a lawyer practicing at Supreme Court of India.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]