Two recent judicial appointments to the Supreme Court seem to have denied two judges from Bengal — Justice Biswanath Somadder and Justice Dipankar Dutta — the chance of eventual elevation to Chief Justice of India, sources in Calcutta High Court have said.

Justices Somadder and Dutta, chief justices of the high courts in Sikkim and Mumbai, respectively, held the first and second ranks on the all-India seniority list of high court judges.

“Had the normal practice of appointing judges to the Supreme Court on the basis of seniority been followed, the elevation of Justices Somadder and Dutta to the Supreme Court would have been natural. Both of them would have been in line to become Chief Justice of India had they been elevated to the apex court this time,” a source said.

Another senior judge in line to become CJI — Andhra Pradesh High Court Chief Justice Prashant Mishra — ranked three on the all-India seniority list of high court judges. Justice Mishra too has failed to make it to the Supreme Court this time, the source said.

In the latest round of judicial appointments, Justice Sudhanshu Dhulia, chief justice of Gauhati High Court, and Justice J.B. Padriwala, one of the judges in Gujarat High Court, have made it to the apex court.

After the appointment of these two judges on Monday, the Supreme Court got its full strength of 34 judges. The number, however, came down to 33 on Tuesday with the retirement of Justice Vineet Saran.

“Justice Dhulia was 30th on the all-India seniority list of high court judges while Justice Padriwala was 49th. Even among the judges in Gujarat High Court, Justice Padriwala’s rank was third,” a source said.

Although seniority is not the sole criterion for appointing Supreme Court judges, legal circles in Calcutta High Court feel that the collegium’s decision has cost Bengal.

Justice Somadder, who became a judge of Calcutta High Court in 2006, became its acting chief justice in 2019 and was transferred as a judge of Allahabad High Court the same year. On April 27, 2020, he was appointed chief justice of Meghalaya High Court. He became chief justice of Sikkim High Court on October 12 last year.

Justice Dutta was elevated to the bench of Calcutta High Court as a permanent judge in 2006 and was appointed chief justice of Bombay High Court on April 28, 2020.

“There is every possibility of their elevation to the Supreme Court someday. But with the collegium ignoring them in this round, they are unlikely to make it to CJI. Born in 1963, Justice Somadder will be in service till 2028 whereas Justice Dutta will have a stint till 2030 as a Supreme Court judge.… Both were in line to become Chief Justice of India but, sadly, that does not seem to be happening,” a source said.

The retirement age for high court judges is 62 while Supreme Court judges superannuate at 65. The last CJI from Calcutta High Court was Justice Altamas Kabir, who retired on July 18, 2013.

Since some other selection criterion --- such as giving representation to unrepresented regions or communities --- cannot be invoked to explain both the appointments that have been made, the collegium’s decision has raised questions.

Justice Dipankar Dutta.

“Justice Dhulia’s appointment on the representation ground can be justified as he is from Uttarakhand, but Justice Padriwala is from Gujarat and already there are two judges from the state,” the source said.

The source recalled the controversy surrounding Justice Padriwala's remarks against reservations as a judge of Gujarat High Court, which had prompted 58 Rajya Sabha MPs to move a petition seeking his impeachment in December 2015. Justice Padriwala later expunged the remarks he had made against reservation and no effort was made to take forward the notice of impeachment against him.

Other sources said judicial veterans hold Justice Pardiwala in high esteem, vouching for his impeccable integrity and his unwillingness to mince words when it comes to safeguarding the interests of common people.

In May 2020, Justice Pardiwala, heading a bench, had compared the coronavirus situation in Gujarat to the “sinking Titanic” and described it as “one of the worst-affected states in the country”.