“Judge who had rendered any decision in a smaller combination is not disqualified from being part of a Larger Bench when a reference is made to the Larger Bench. Rather, it is a consistent practice prevailing in various High Courts as well as of this Court to include the same Judge/Judges in Larger Benches.
Litigants if given the right to seek recusal of a Judge on the ground that in a Smaller Bench, a view has been taken by the Judge, the correctness of which has to be decided by the Larger Bench, which includes the same Judge, then on a parity of reasoning recusal might be sought on the ground of the Judge having taken a view one way or the other even in a different case in which similar issues are involved if the Judge has decided similar issues earlier, in the same Court or in a different Court. This would open the flood gates of forum shopping.
There is a consistent practice of this Court which has evolved that the Judges who have rendered a decision earlier in smaller combination, have also formed part of the Larger Bench, and there are umpteen occasions, as mentioned, when Judges have overruled their own view. Having surveyed the precedents cited and having considered the arguments, it is my considered view that a Judge rendering a Judgment on a question of law would not be a bar to her or his participation if in a Larger Bench if that view is referred for re-consideration.
I have taken an informed decision after considering the nitty-gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent.”
– Hon’ble Justice Arun Mishra, Indore Development Authority v. Manohar Lal, [Special Leave Petition (Civil) Nos. 9036-9038 of 2016].