A committee of the country's five senior-most judges headed by Chief Justice of India Dipak Misra had made a strong recommendation to appoint Justice Joseph, who set aside President's rule in the hill state in 2016, as a Supreme Court judge.
On January 10, the committee, formally called the collegium, had described Justice Joseph as "more deserving and suitable in all respects than other Chief Justices" and senior judges of High Courts for being appointed as Judges of the Supreme Court of India.
The recommendation sent to the government noted that the collegium had taken into consideration combined seniority on all-India basis of Chief Justices and senior judges of High Courts, apart from their merit and integrity.
But government sources told NDTV that this recommendation goes against the principle of seniority that the top court had, in two verdicts, decided should be the criteria for appointment of judges. Sources said Justice KM Joseph is 45 in the All India seniority of judges and at number 12 in the list of Chief Justices of the High Court.
It is also being pointed out that representation of the states is not being reflected adequately in the Supreme Court. For instance, sources said, three judges from the Bombay High Court had been recommended as Chief Justices of high courts but there was no one from Gujarat.
But this is not the first time that Justice Joseph's transfer has run into trouble.
The government, however, did not clear this transfer. The high court at Hyderabad still does not have a full-time Chief Justice.
Government sources, however, added that the row over Justice Joseph's elevation may not necessarily stall the appointment of Indu Malhotra as the first woman lawyer to be directly appointed to the top court.
The Supreme Court collegium had recommended Justice Joseph and Indu Malhotra's appointment together. Sources said this did not mean that the government had to either accept both recommendations or none and could process Indu Malhotra's recommendation and refer Justice Joseph's case back to the collegium for a review.
As per the established procedure, the recommendations of appointment, transfer and elevation of high court and Supreme Court judges are sent to the government. The government can return the file once, but usually agrees to it if the collegium reiterates its recommendation.
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