The lack of seniority is a poor reason for freezing the appointment of Uttarakhand High Court Chief Justice K.M. Joseph, who wrote the judgment quashing President’s rule in the State, according to a senior Supreme Courtsource in favour of his candidature.

In a six-page letter addressed to Chief Justice of India Dipak Misra on Friday, the government had said Justice Joseph is much too junior among High Court judges to be elevated to the Supreme Court. It said he is placed 42nd in the All India High Court Judges’ Seniority List and that 11 Chief Justices of various High Courts are senior to him.

But such elevations to the apex court are not new with sitting Supreme Court judges such as Justices Ranjan Gogoi, Mohan M. Shantanagoudar, S. Abdul Nazeer, Naveen Sinha and Deepak Gupta having been chosen over their seniors.

The highly-placed source in the Supreme Court said merit, more than seniority, is a crucial factor while considering a judge for elevation to the Supreme Court.

Earlier instances

Justice Gogoi, who is judge number three in the Supreme Court and the next CJI as per the seniority norm, was appointed before his Supreme Court colleagues Justices Madan B. Lokur, Kurian Joseph, A.K. Sikri, S.A. Bobde, R.K. Agrawal, N.V. Ramana, Arun Mishra, A.M. Khanwilkar, A.M. Sapre and D.Y. Chandrachud, who were all senior to him.

Justices Deepak Gupta and Naveen Sinha have approximately over 30 high court judges senior to them as of now. At the time of their appointment on February 17, 2017, they had around 40 high court judges senior to them in various high courts.

Similarly, Justices S. Abdul Nazeer and Mohan M. Shantanagoudar have 14 high court judges senior to them now. At the time of their appointment, also on February 17 last year, over 20 judges were senior to them.

Another reason cited for re-consideration of Justice Joseph’s candidature is that his parent High Court of Kerala, with a sanctioned judge strength of 47, is a “comparatively small” one. If he is appointed, there would be two judges — Justice Kurian Joseph is a sitting Supreme Court judge — from Kerala High Court. The letter said the Kerala High Court has adequate representation in the Supreme Court and high courts’ judiciary, and any more would “forestall” the chances of judges from other high courts.

The source said the argument was “hollow” as the Supreme Court had three apex court judges — Justices K.G. Balakrishnan, Cyriac Joseph and K.S. Radhakrishnan — at the same time, and all hailing from the Kerala High Court. Again, this was at a time when the High Court’s judge strength was less than 40.

The source said Justices K.S. Paripoornan and K.T. Thomas were also Supreme Court judges at the same time when the strength in the Kerala HC was just 21.

Besides, the Bombay High Court has a generous representation both in the Supreme Court and the high courts. Justices Bobde, Khanwilkar and Chandrachud, all hail from that high court. Allahabad Chief Justice D.B. Bhosale, Punjab Chief Justice S.J. Vazifdar and Acting Chief Justice of Bombay High Court V.K. Tahilramani all hail from the Bombay High Court. The Delhi High Court has three sitting judges in the Supreme Court, while Andhra Pradesh and Madhya Pradesh have two each.

On the government’s letter highlighting that there has been no SC/ST representation in the Supreme Court judiciary “since long”, the source pointed out that Justice Joseph’s appointment has no connection with the argument. When appointed, Indu Malhotra will be the 25th Supreme Court judge. The Court would have seven more vacancies with the retirement of Justice Agrawal on May 4. There would be “ample room” for SC/ST representation.