Justice K.M. Joseph was part of Uttarakhand high court bench which in 2016 had quashed the imposition of President's Rule in the state.
A recommendation by the Supreme Court collegium to elevate Chief Justice of Uttarakhand High Court K.M. Joseph as a Supreme Court Judge may be sent back by the Centre for 'reconsideration', citing 'disregard for seniority and regional representation', reported The Indian Express.
A Supreme Court collegium headed by Chief Justice of India Dipak Misra had sent a recommendation to the centre last month over the direct elevation of Justice K. Joseph and advocate Indu Malhotra as Supreme Court judges.
In a collegium meeting held on January 10 between the CJI and top four senior-most judges --Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph-- the name of Justice K.M. Joseph, who was part of Uttarakhand high court bench which in 2016 had quashed the imposition of President's Rule in the state, was cleared for elevation to the apex court.
Justice Joseph was appointed as Permanent Judge of the Kerala High Court in 2004 and later transferred to Uttarakhand High Court where he assumed charge in 2014 as Chief Justice.
The law ministry, however, may send back the recommendation without forwarding it to President Ram Nath Kovind for issuing warrant of appointment.
“Are we going to give seniority and regional in matters of appointing High Court Chief Justices and Supreme Court judges?...Not only 44 High Court judges are senior to Justice Joseph, 12 of them are Chief Justices of different High Courts,” government sources reportedly said over recommendation of appointment of Justice Joseph.
Justice Joseph's appointment is also not in line with the principles set out in two Supreme Court rulings of 1993 and 1998 that made the Collegium a mechanism for appointments to higher judiciar, the report said quoting sources.
SC Rulings of 1993, 1998
Provisions of the Constitution for appointment of judges were rewritten and authority transferred to the SC collegium as a result of of two judgments of the Supreme Court, first in 1993 (Supreme Court Advocate-on-Record Association case) and by a follow-up President’s Reference to the Court in 1998.
In the first case in 1993, the power to appoint judges was vested with the Chief Justice of India assisted by two judges of the Supreme Court. The 1998 ruling transferred that authority to a collegium headed by the Chief Justice and constituting four senior-most judges.
The 1993 ruling also set out guiding principles for appointments of SC judges, iterating that 'seniority among judges in High Courts and their combined seniority in All India basis is of admitted significance in matters of future prospects.'
Justice Joseph currently stands at number 45 in the inter-state All India seniority of High Court Judges, but, according to legal sources quoted by the report, that does not stand in the way of his elevation to the Supreme Court ahead of other senior High Court judges.
Despite the possible rejection by the Centre, however, the Supreme Court collegium, is under no obligation to accept the 'reconsideration' of its recommendation.
According to the current norms, the centre cannot reject the recommendations after it is sent back by the SC collegium.
In 2016, the Supreme Court had sent back to the government all the 43 names its collegium had recommended for appointment to high court but were rejected by the Centre.
The 43 names were part of a list of 77 that the collegium had recommended to the government. The law ministry, however, sat on it and later rejected, before the SC collegium sent it again.