Judicial Appointments: Are Centre's Claims On Lack Of Seniority Of Justice KM Joseph And Justice Surya Kant Valid?

The Centre has reportedly blocked the recommendations of the Supreme Court Collegium to appoint Uttarakhand high court chief justice K.M.Joseph as a Judge of the Supreme Court and Justice Surya Kant of Punjab and Haryana high court as Chief Justice of the Himachal Pradesh high court. Although there is no official confirmation of that report and the Centre has not returned the recommendation to the Collegium yet for its reconsideration, reports appearing in the media suggest that the Centre has certain reservations about these recommendations. LiveLaw answers the questions that readers may have on this controversy, as it has unfolded so far.Q: The present recommendations to elevate Justice K.M.Joseph and Justice Surya Kant were sent on January 10. Yet, the Centre is neither returning them for reconsideration by the Collegium, nor going ahead with these appointments. Does the Centre have the option to sit over the Collegium’s recommendations and take its own time to process it?A: The existing Memorandum of Procedure (MoP) is very clear. Paragraph 3.5 says after receipt of the final recommendation of the Chief Justice of India, the Union Minister of Law and Justice will put up the recommendations to the Prime Minister who will advise the President in the matter of appointment. It does not envisage any inexplicable time gap between the submission of the recommendation by the collegium and the Centre’s duty to act on it.Q: The Centre is reportedly of the view that Justice Joseph does not enjoy seniority in the all-India list, an important criterion for selection. Is it a valid claim?A: The Supreme Court, in the Second Judges case, held in 1993: “Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis, should be kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court.”It also said that the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority” must be duly considered.The statement made thereafter is very important; it is: “Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India for appointment to the Supreme Court.”The Supreme Court’s judgment in the Third Judges case (1998), after reproducing this paragraph from the Second Judges case, held: “Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the Supreme Court”. It continued:“Where, therefore, there is outstanding merit, the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit. When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent high court is situated is not represented on the Supreme Court bench. All that then needs to be recorded when making the recommendation for appointment is this factor. The “strong cogent reasons” for appointing to the Supreme Court a particular High Court Judge, not for not appointing other High Court Judges senior to him.”This, seen in the context of what the Collegium said in its resolution on January 10 with regard to the outstanding merit of Justice Joseph, is clear that the Collegium is aware of his position in the all-India seniority list, and yet recommended him, in view of his “outstanding merit”. The Collegium said: “Justice Joseph is more deserving and suitable in all respects than other chief justices and senior judges of the high courts for being appointed as SC judge”. While recommending the name of Justice Joseph, the collegium took into consideration combined seniority on all-India basis of chief justices and senior judges of High Courts, apart from merit and integrity.Q: According to law ministry sources, cited in the news report, Justice Joseph was 12th in the list of seniority of CJs of 24 high courts, and at the 45th position in the all-India Judges’ seniority list. The “legitimate expectation” of the high court Judges to be considered for appointment to the Supreme Court in his turn according to his seniority, has also been cited by the ministry. What is the basis of this claim?A: The paragraphs culled from the Second and Third Judges cases, reproduced in the answer to the previous question, are an answer to the Centre’s contention. Therefore, the Centre’s defence is no...

Judicial Appointments: Are Centre's Claims On Lack Of Seniority Of Justice KM Joseph And Justice Surya Kant Valid?

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