The government is considering clearing the appointment of senior advocate Indu Malhotra as Supreme Court judge while keeping on hold the collegium's another recommendation to elevate Uttarakhand High Court Chief Justice K M Joseph to the apex court, sources in the Law Ministry said today.
On January 22, the Supreme Court collegium's file recommending the elevation of Justice Joseph and Malhotra reached the Law Ministry.
After processing the file in the first week of February, the recommendations were kept in abeyance as the government wanted to elevate only Malhotra.
But now, the government is considering to go ahead with the appointment of Malhotra and keep on hold the elevation of Justice Joseph.
The government feels that while recommending the name of Justice Joseph, the collegium has disregarded seniority and regional representation.
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He is 42nd in the seniority list of 669 high court judges.
If the government goes ahead with "segregation" of the recommendations --- proceeding with one and keeping on hold the other, Law Minister Ravi Shankar Prasad may write to Chief Justice of India Dipak Misra about its intention.
There is a feeling within the government that the issue cannot be prolonged and a final decision has to be taken.
Earlier, legal experts had cautioned the government against accepting one of the recommendations of the Supreme Court collegium while keeping the other one on hold, pointing that a Chief Justice of India had told the Law Ministry not to "segregate" names sent for appointment together.
The sources said when legal exerts were asked whether the collegium's recommendation could be segregated, they reminded the government of a letter written by then Chief Justice of India R M Lodha in June 2014, in which he had made it clear that the executive cannot segregate recommendations without prior approval of the collegium.
Justice Lodha had written to the government when it had decided against elevating senior lawyer and former solicitor general Gopal Subramanium to the Supreme Court, while accepting other recommendations of the collegium.
But in the meantime, Subramanium withdrew his consent to be recommended for judgeship.
A previous recommendation of the Supreme Court collegium made in 2016 proposing transfer of Justice Joseph from Uttarakhand to Andhra Pradesh remains on hold with the government.
The Uttarakhand High Court chief justice had set aside the imposition of President's Rule in the state in April, 2016.
While recommending the name of Justice Joseph for the top court, the collegium had said that he is "more deserving and suitable in all respects than other chief justices and senior puisne judges of high courts for being appointed as judge of the Supreme Court of India".
The collegium had taken into consideration combined seniority on all-India basis of chief justices and senior puisne judges of high courts, apart from their merit and integrity, the body of top five judges of the Supreme Court had said.
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