NEW DELHI: Former Chief Justices of India Justice R M Lodha and Justice T S Thakur today differed on the issue of seniority of Justice K M Joseph in the Supreme Court, with the former advocating for the urgent remedial measure while the latter finding no fault with the Centre.
Justice Lodha said the notification can be "altered" if the Chief Justice of India Dipak Misra succeeds in convincing the Centre that the collegium's recommendation has not been considered in its true spirit, while Justice Thakur was of the view that the date of appointment as the High Court judges is the basis for determining the seniority of the judges being elevated to the Supreme Court on the same day.
Justice Lodha said if Justice K M Joseph's name was sent separately, he should be ranked senior and the grievance of the sitting top court judges, who reportedly met the CJI, should be looked by him.
"As far Justice Joseph's elevation is concerned, he should be ranked senior to other judges because his name, I think, was sent earlier to the government for reconsideration.
I am told his name was sent separately to the government for reconsideration and other two names followed his name.
"So it means the general rule of initial appointment to the High Court will not apply because these are two different recommendations. But if names were sent together and the collegium went by the initial date of appointment then the scenario will be different," he said.
Justice Thakur said that the practice is to go by the date of appointment in the high court for considering the seniority of a candidate for elevation.
"Suppose, if three people are getting appointed on the same date then the appointment in the high court is considered to be the basis of the seniority. That has even happened in my own case when I was elevated to the top court. My impression is that seniority depends on the date of the appointment," Justice Thakur said.
He said there were two judges, who were junior to him but they were appointed as the Chief Justices of High Court before him but when it came to their appointment in the Supreme Court, his appointment as the judge of the High Court was counted for the oath-taking and he was considered senior to two others when all three were sworn in as the judges of the apex court on same day.
On the question of notification already issued, Justice Lodha said that the notification can be altered and the CJI can take up the matter with the government and inform it that Justice Joseph's name was sent separately and sent prior in time and his initial appointment date to the high court should not be considered.
A senior advocate said now there is not much that can be done as the President has given assent to the appointment of three judges -- Justices Indira Banerjee, Vineet Saran and K M Joseph -- in the order of seniority.
The apex court collegium comprising CJI and Justices Ranjan Gogoi, M B Lokur, Kurian Joseph and A K Sikri had on July 16 reiterated its recommendation to elevate Justice K M Joseph as the apex court.
The collegium's resolution about its July 16 meeting was uploaded on the apex court's website which showed Justice K M Joseph's name was separated from that of Justices Indira Banerjee and Vineet Saran.
According to the collegium's January 10 resolution, when Justice Joseph's name was recommended for elevation, "he stands at Sl.No.45 in the combined seniority of High Court Judges on the all-India basis."
His name was recommended along with that of senior woman advocate Indu Malhotra. However, the Centre had returned Justice K M Joseph's name for reconsideration and cleared the name of Malhotra, who is now a sitting judge.
Later, on July 16, the collegium stood by its recommendation on Justice K M Joseph and the Centre also cleared his name.
According to the July 16 resolution of the collegium, Justice Banerjee stood at Sl.No.4 and Justice Saran stood at Sl.No.5 in the combined seniority of high court judges on the all-India basis.
Justice Joseph became a high court judge on October 14, 2004, and he was elevated as a chief justice of high court on July 31, 2014.
He will retire on June 16, 2023, as an apex court judge.
Similarly, Justice Banerjee became a high court judge on February 5, 2002, and was made a chief justice of high court on April 5, 2017. She would retire on September 23, 2022.
Justice Saran became a high court judge on February 14, 2002, and was made a chief justice of the high court on February 26, 2016.
He will retire as an apex court judge on May 10, 2022.