Controversy Over Justice KM Joseph's Seniority

Justice KM Joseph has found himself in the middle of another controversy. This time, it is about his 'seniority'. He has been in the news in the past – first for passing Orders against the imposition of President's rule in Uttarakhand where he was serving as the Chief Justice of the High Court. The next controversy arose regarding his elevation to the Supreme Court. The government had opted to 'hive-off' his name from the list recommended by the Collegium. It resulted in a bittersweet moment for the Apex Court. There was jubilation over Justice Indu Malhotra being appointed, as she was the first woman to be appointed directly from the Bar. On the other hand, there was disappointment that Justice Joseph's elevation had been rejected.

Also Read: A Bitter Sweet Moment For the Supreme Court

The concept of seniority in government is determined on the basis of appointment date. Therefore, a 35-year-old person appointed at an earlier date would be deemed more senior than a 40-year-old person appointed later. When two appointments are made on the same day, the person whose name appears at the top will be accorded seniority over someone whose name appears lower down. Seniority has implications in various matters and procedures. However, in the case of the Supreme Court of India, it determines the succession of the Chief Justice of India. This is due to the convention of the Court being that the senior-most Judge will be appointed as the Chief Justice.

Also Read: The Government's Reasons For Returning Justice K. M. Joseph's Recommendation are Weak

The present controversy has arisen as Justice Joseph has been made 'junior' to two other Judges elevated alongside him – Justices Indira Banerjee and Vineeth Saran. The Collegium had placed his name first in the list of the names they had recommended to the government. However, his name was placed last in the Notification confirming the appointments. Reports have stated that the Judges of the Court will be meeting the Chief Justice of India, Dipak Misra, to discuss this matter ahead of the swearing in ceremony tomorrow.

Also Read: The Government has Acted in an Arbitrary, Illegal and Unconstitutional Manner

Justice Joseph had initially sought a transfer from the High Court of Uttarakhand to the High Court of Andhra Pradesh and Telangana on health grounds in 2016. The government's ambivalence concerning his request was perceived as 'punishment' for the Order he had passed quashing the President's rule. In January this year, the Collegium had recommended him for elevation to the Apex Court alongside then senior counsel Indu Malhotra. The government had rejected his elevation on rather flimsy grounds which had the legal fraternity up in arms.

On July 16 this year, the Collegium had re-recommended his name alongside two other Judges. This time, the government has accepted the recommendation. However, not only did they affect his seniority through the previous rejection, they have also done so through the appointment notification. One would have to wait and see whether the Chief Justice of India can rectify this apparent executive bias against a Judge.