For the mess over seniority of Justice K M Joseph, blame squarely falls on Collegium

As apprehended, the Central Government has altered the order of seniority among newly appointed three justices of the Supreme Court of India — namely, Justice Indira Banerjee, Justice Vineet Saran and Justice K M Joseph. According to their warrants of appointments signed off by the President of India on August 3, 2018, Justice K M Joseph has been put below the other two justices in the seniority order despite the fact that Justice Joseph's name was initially recommended by the Supreme Court Collegium much before the name of Justices Banerjee and Saran.

The mess on the seniority issue has begun with the recommendation of Justice Joseph's name, reconsideration of his name that was sought by the Government of India,and the subsequent reiteration of his name by the Collegium, alongwith the recommendation for appointments of two new judges, but in a separate file, to the Department of Justice.

Background to the confusion

Justice K M Joseph's name for the first time was recommended on January 10, 2018 along with the name of Indu Malhotra (presently judge of the Supreme Court) by the Supreme Court Collegium, which then consisted of Chief Justice of India DipakMisra, Justice J Chelameswar, Justice RanjanGogoi, Justice Madan B Lokur and Justice Kurian Joseph. The Collegium in its resolution to this effect had clearly stated that the appointments be made in the following order:

1. Justice K M Joseph
2. Indu Malhotra, Senior Advocate

The above order of appointments meant that Justice Joseph ought to have been senior to Justice Indu Malhotra. However, the Centre government after sitting on the file for more than three months decided to segregate the name of Justice Joseph in order to seek reconsideration on his name on the ground that he lacked seniority in combined seniority on all-India basis of senior puisne Judges of High Courts. The Centre Government also decided to notify appointment of Indu Malhotra as judge of the Supreme Court. With the appointment of Indu Malhotra, Justice Joseph, though was sought be appointed by the Collegium in a way to give him seniority over Indu Malhotra, was made to wait for the reiteration of his name by the Collegium.