Went by transparent seniority principle: Govt on Justice KM Joseph’s elevation

The Union government has gone by a “transparent seniority principle” in the elevation of three judges to the Supreme Court earlier this month, and it would have been “completely improper, unreasonable and unfair” to have made Justice KM Joseph senior to justices Indira Banerjee and Vineet Saran because they are both two-and-a-half years his senior as high court judges, a top government functionary said on Monday on the condition of anonymity.

The appointments of justices Banerjee, Saran and Joseph to the apex court were cleared by the government on August 3. But the government notification placed justice Joseph below justices Banerjee and Saran, thereby granting them seniority to him in the court’s internal hierarchy.

On Monday morning, some senior Supreme Court judges took up the issue of “altering” justice Joseph’s seniority vis-a vis the other two judges with chief justice of India (CJI) Dipak Misra. “We said the CJI should look into the matter as justice Joseph’s file for elevation to the Supreme Court was sent in January 2018, much before that of justice Banerjee and justice Saran,” one judge said on the condition of anonymity.

The CJI assured the judges he would take up the matter with the government after consultations with the attorney general of India, KK Venugopal, the judge added.

But the SC registry in its List of Business for August 7 said that the order of swearing-in of the three judges will be justice Banerjee, justice Saran, and justice Joseph - in line with the government’s notification.

The government believes that the concerns of a section of Supreme Court judges over the seniority issue are unfounded.

“The government has only gone by a transparent seniority principle in this case. Justice Banerjee ranks number four in the all-India seniority list of high court judges; justice Saran ranks number five on the list; and justice Joseph is at number 39 of the list,” said the government functionary quoted above.

He added that justice Banerjee was appointed as a high court Judge on February 5, 2002, justice Sharan was appointed as a high court  judge on February 14, 2002, and justice Joseph on October 14, 2004.

“Therefore, the first two are more than two-and-a-half years senior to justice Joseph. It would have been completely improper, unreasonable and unfair to make high court judges two-and-a-half-years his senior as junior to him in the Supreme Court,” the functionary said, arguing that who becomes a high court Chief Justice first is not a relevant consideration in the decision at all.

“There are ample precedents. Justice Dipak Misra and justice J Chelameswar were appointed on the same day. But the United Progressive Alliance (UPA) government made justice Misra senior because he was one-and-a-half years senior to justice Chelameswar as a high court judge, even though the latter had become a high court chief justice before Justice Misra. What matters is their seniority as a judge.”

The functionary also said there was no logic to the argument that justice Joseph should be granted seniority because his name was propsed first by the collegium. He also said that the SC collegium often defers recommendations sent by the high court. “Subsequently, their names are cleared for appointment. They cannot claim they should get seniority on the basis of the date of deferment.”

Justice Joseph’s appointment was first cleared by the Supreme Court collegium this January. The government sent back the file for reconsideration in April on the grounds that justice Joseph was not senior enough and that having two judges from the Kerala high court would be against the principles of regional representation.

In July, Justice Joseph’s name was reiterated by the collegium, eventually leading to the government clearing his appointment. The seniority issue is particular important if a judge is line to become the future Chief Justice of India, but that scenario does not apply in justice Joseph’s case.

First Published: Aug 06, 2018 22:01 IST