Government returns recommendation on elevation of Justice K M Joseph

Delhi, IndiaUpdated: Apr 27, 2018, 07:47 AM IST

File photo of Justice KM Joseph. Photograph:(Others)

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The Law Ministry's note said the proposal to reconsider Justice Joseph's name had the approval of President Ram Nath Kovind and Prime Minister Narendra Modi

Uttarakhand High Court Chief Justice K M Joseph , who headed the bench that had quashed the Narendra Modi government's decision to impose President's rule in the Congress-ruled hill state in 2016, was not considered to be elevated as a Supreme Court judge by the Centre today.

The government returned the Collegium's recommendation to elevate Justice Joseph seeking its reconsideration, saying the proposal was not in accordance with the top court's parameters and there was an adequate representation of Kerala in the higher judiciary from where he hails.

Justice Joseph, who will turn 60 this June, has been the Chief Justice of Uttarakhand High Court since July 2014. He was appointed a permanent judge of the Kerala High Court on October 14, 2004, and had assumed charge of the Uttarakhand HC on July 31, 2014.

A High Court judge retires at the age of 62 while the retirement age for an apex court judge is 65 years.

The NDA government's decision to return to Collegium its recommendation came after almost three and half months since January 10 when his name was cleared by the five-member Collegium comprising Chief Justice Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph.

Time and again since then, the members of the Collegium had expressed concern over the government sitting on their recommendations to elevate Malhotra and Joseph. The latest communication in this regard was made to the CJI by Justices Gogoi and Lokur, a day before Rajya Sabha Chairman M Venkaiah Naidu rejected the notice of impeachment moved by the Congress-led MPs against the CJI.

The collegium resolution had earlier said it "considers that at present Justice K M Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judges of the Supreme Court of India."

"While recommending the name of Justice Joseph, the collegium has taken into consideration combined seniority on the all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity," it had said, adding "he stands at Sl. No.45 in the combined seniority of High Court Judges on an all-India basis." 

Justifying its stand of returning the recommendation, the Centre sent a detailed note to Chief Justice Dipak Misra giving reasons to the Supreme Court collegium for its decision, including that seniority may not be an important consideration to ensure regional representation.

The Law Ministry note addressed to the CJI who heads the five-member apex court collegium, said the proposal to reconsider Justice Joseph's name had the approval of President Ram Nath Kovind and Prime Minister Narendra Modi.

"It is also, in our considered view, not in accord with the parameters laid down by the Supreme Court itself in the Second Judges case and reiterated in Third Judges case," it said.

The Ministry said "the seniority of judges also plays its own critical role. It is understood that seniority of judges of the high court is only maintained at all India level. Obviously, this is reflective of their seniority and also the parent high court. 

"From our records, it is evident that to ensure regional representation, seniority may not have been taken as an important consideration, but in case where the high court concerned is adequately represented in the Supreme Court and also as Chief Justices of different high courts, then this consideration cannot be, and should not be ignored altogether to the detriment and prejudice of other senior judges."

On the acceptance of one of the two proposed names for elevation, the Centre said such segregation of proposals has been done in many cases earlier, including the appointment of judges to various high courts and also to the Supreme Court in the interest of expeditious action of appointments and filling up vacancies. 

Regarding judges in the top court from Kerala, it said that besides Justice Kurian Joseph who was elevated as a judge in the top court from the Kerala High Court on March 8, 2013, there were two other Chief Justices, Justices T B Radhakrishnan and Antony Dominic, whose parent high court was also the same.

The note said at this stage, the elevation of one more judge from Kerala High Court as an apex court judge does not appear to be justified as it does not address the legitimate claims of the Chief Justices and puisne judges of many other high courts and "forestalls" the claim of other senior chief justices and puisne judges. 

"It would be appropriate to mention here that Kerala High Court has adequate representation in the Supreme Court and among Chief Justices in various high courts," the note to the collegium said.