'Didn't tinker with 3 judges' seniority'

New Delhi: The government on Monday defended the order of oath-taking of three judges who are to be appointed to the Supreme Court, saying it had gone purely by the “time tested” principle of high court seniority list.

Sources in the government said that Justice K.M. Joseph is two-and-a-half years junior to Justices lndira Banerjee and Vineet Saran in the all-India seniority of high court judges. And that is why the presidential notification dated August 3 puts Madras high court chief justice Indira Banerjee as number one, Orissa high court chief justice Vineet Saran as number two and Uttarakhand high court chief justice K.M. Joseph as number three.

The government’s reasoning is that Justices Saran and Indira Banerjee were elevated as judges of the Allahabad high court and Calcutta high court respectively in 2002, while Justice Joseph became a judge of the Kerala high court only in October 2004.

But the collegium took into consideration the fact that Justice Joseph was appointed chief justice of the Uttarakhand high court on July 31, 2014, whereas Justice Saran became CJ of Orissa high court on February 26, 2016, and Ms Banerjee became CJ of Madras high court on April 5, 2017.

The government’s clarification comes amid a controversy over what some senior judges say is a deliberate move by the government to lower Justice Joseph’s seniority in the Supreme Court by making him take the oath last. The judges feel this is yet another attempt by the government to embarrass Justice Joseph, whose file it had earlier returned.

They say that since Justice Joseph’s name was in-principle reiterated before the recommendation for Justices Banerjee and Saran was made, he should have been their senior in the top court.

During the customary “tea meeting” in the Supreme Court on Monday, Justices Kurian Joseph, Madan B. Lokur and others had an informal discussion with Chief Justice of India Dipak Misra on the issue, and  reiterated that since Justice Joseph was number “one” in the collegium’s recommendation, he should take the oath first.

Though the CJI assured the judges that he would take up the matter, it is unlikely that the order of the swearing-in will be changed.

The administrative branch of the court, in fact, accepted the Centre’s directive and issued a circular on August 4 that the swearing-in ceremony of Justices Banerjee, Saran and Joseph will take place at 10.30 am on August 7 in the same order as mandated by the President. The three judges are to be sworn in by the CJI in the First Court hall on August 7.

On January 10, the collegium has recommended the names of Justices K.M. Joseph and advocate Indu Malhotra for appointment as Supreme Court judges. While clearing the name of Ms Malhotra, the Centre returned the file of Justice Joseph, pointing out that his seniors had been overlooked.

On July 16, the collegium, while reiterating the name of Justice Joseph, also sent the names of Justices Banerjee and Saran.

The collegium has time and again made it clear that in the elevation of chief justices of high courts as judges of the Supreme Court, all-India seniority is one of the conditions but not the only condition as several other factors are also taken into consideration while making recommendations. So, the warrant of appointment ought to have been in the order recommended.

Despite the change of seniority, Justice Joseph, who was born on June 17, 1958, will retire on June 16, 2023, and have a longer stint than Justice Saran, who will retire on May 10, 2022, and Justice Banerjee, on September 23, 2022. Justice Saran was born on May 11, 1957, and Justice Banerjee was born on September 24, 1957.