Seniority Fiasco of Justice K M Joseph
It is really unfortunate that Justice K M Joseph has been placed junior to Justice Indira Banerjee and Justice Vineet Saran. By issuing the order of appointment in such a manner, the Centre has acted contrary to the intention of the Supreme Court Collegium.
It is clear from the Collegium resolution of the Supreme Court of July 16 that they were "reiterating" the recommendation of Justice Joseph, which was earlier made on January 10. While making the re-recommendation, the Collegium also stated that nothing adverse against the suitability of Justice K. M Joseph has been pointed out in the letters of the Union Ministry, which had sent back his name of April 30. Therefore, the initial recommendation of Justice Joseph, which was made on January 10 along with Indu Malhotra, was in effect revived by the reiteration.
This is clear from the fact that the files pertaining to the appointment of Justice K M Joseph and Justice Indu Malhotra bear the same number :- No.K-13011/01/2018-US.I. And the file pertaining to Justice Indira Banerjee and Justice Vineet Saran bears a different number :- No.K-13011/03/2018-US.I. Therefore, it can be concluded that the Centre has proceeded to give effect to the initial recommendation of Justice Joseph made on January 10. It was noted by the Collegium in its resolution of January 10 that he was more deserving and suitable for elevation that other Chief Justices and senior puisne judges.
The July 16 resolution treated the case of Justice K M Joseph separately to reiterate his name, and made a joint recommendation of Justice Indira Banerjee and Justice Vineeth Saran. In the second collegium recommendation, the names are listed in the order Justice K.M Joseph, Justice Indria Banerjee and Justice Vineeth Saran.Hence, the intention of the Collegium was to give seniority to Justice Joseph, by reviving and reiterating the initial recommendation. It is also relevant to note in this context that Justice Joseph is the senior most in country amongst Chief Justices.
The assignment of lower seniority to Justice Joseph has not gone down well with many members of legal fraternity. Commenting on the situation, former CJI R M Lodha reportedly said "Obviously when Justice Joseph's name is considered and reiterated separately, the collegium intended Justice Joseph to be ranked senior to the other two (Justice Banerjee and Justice Saran). But it appears that it has been altered at the executive stage. The collegium was very clear in its mind that Justice Joseph must rank senior. This is very strange in a way"
The sitting judges of the Supreme Court are also reported to be unhappy with the situation.
“Justice Joseph’s name was approved by the SC Collegium comprising the five most senior judges on January 10 while the other two names — Madras High Court Chief Justice Indira Banerjee and Orissa High Court Chief Justice Vineet Saran — were approved on July 16. Therefore the name which was sent first must come first in the list,” this was reportedly the view expressed by a source in Supreme Court.
There are reports that the SC judges are putting pressure on Chief Justice Dipak Misra to restore seniority of Justice Joseph by administering oath to him first. "This is mean. This is not acceptable, justice Joseph’s name was cleared first in January, his reiteration in July was also first and separate. He should be the senior-most, this is an attack on the independence of judiciary and many judges are upset. We will ask the CJI to administer oath of office first to justice KM Joseph to nullify the seniority fixed by the government", a Senior Judge reportedly expressed.
Ideally, Justice K M Joseph ought to be placed senior to Justice Indu Malhotra, going by the letter and spirit of initial recommendation. Anyhow, that cannot be achieved any more in view of the earlier appointment of the Justice Indu Malhotra, following the unprecedented act of splitting up of collegium recommendation done by the Centre. In the given circumstances, the interests of propriety and fairness demand that Justice K M Joseph be assigned his due seniority over Justice Indira Banerjee and Justice Vineet Saran. That is necessary to uphold the pride and majesty of judiciary, which is getting incrementally battered these days.