Amidst uncertainty over Uttarakhand Chief Justice KM Joseph's elevation, a public interest litigation has been filed in the Supreme Court seeking his immediate appointment to the apex court.
A retired District Judge has approached the apex court seeking urgent action on the recommendation of the Collegium which had suggested Justice Joseph's name for elevation and quashing of the "illegal and unconstitutional" move of the Centre by segregating his name.
"The petitioner is aggrieved by the shocking manner in which the Centre has unilaterally and capriciously segregated and rejected the name of Justice K M Joseph recommended by the Collegium for appointment as a Judge of this Court, while at the same time accepting the recommendation for elevation of Indu Malhotra, Senior Advocate, as a Judge of this Court," the petition said.
The PIL filed by GD Inamdar, a retired district judge from Solapur in Maharashtra, has also sought a direction to the Centre to issue warrants of appointment for Justice Joseph with consequential seniority.
"It is not permissible for the central government to sit as an Appellate Authority over the wisdom of recommendations made by the Collegium. Since the recommendation discusses the seniority issue and endorses Justice KM Joseph in that regard, it is not open for the central government to take a contrary view and return the recommendation.
"It is submitted that the basis for returning the recommendation can conceivably be, if there is any new material that was not considered or not available with the Collegium at the time of making the recommendations, but on the same material the central government cannot give its contrary view and return the file," the plea said.
The petition said when the Collegium has sent a file recommending names of two judges in a particular order of seniority and if the Centre has any objection, then it should have sent the entire file back to the Collegium and sought due permission from it to process one name and reconsider the other name.
"Only after the due approval of the Collegium was obtained, the Warrant of Appointment ought to have been issued for that one name," Inamdar said.
The petitioner said this was an example of "direct infringement on the primacy and independence of the judiciary" as under the garb of "reconsideration" the government seeks to veto the decision of the Collegium and "de facto prevent the names of those whom it considers "inconvenient" or "punish".