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The oath-taking ceremony of three judges elevated to the Supreme Court -- Justices Indira Banerjee, Vineet Saran and K M Joseph -- will take place as scheduled on Tuesday in the order of seniority notified by the Centre.
Highly placed sources in the Supreme Court said that nothing much can be done at this stage and the concerns raised by some of the apex court judges would be discussed after the three judges are sworn-in on Tuesday.
The sources said except Justice Ranjan Gogoi, a member of the apex court collegium who was on leave, others had 'informally' deliberated on the Centre's alleged decision to lower down the seniority of Justice K M Joseph.
However, it was decided that the oath-taking ceremony should take place.
"Let the oath-taking take place. There is no time. The oath-taking can't be deferred. It has to be seen what can be done later," one of the sources said about the discussion that was held among the judges in the morning at the judges' lounge before they commenced the day's working in the apex court.
Judges including members of the collegium comprising Justices M B Lokur, Kurian Joseph and A K Sikri met Chief Justice Dipak Misra.
The sources said that the judges were of the view that there was a need to sit together and ponder over the issue.
They said that the CJI, who heads the collegium, assured the judges that he would consult Justice Gogoi who is the senior most after him and take up the issue with the Centre.
The Centre on Friday last came out with the notification on the appointment of the three judges to the apex court by putting at number three the seniority of Justice K M Joseph.
In the notification, the names of Justice Indira Banerjee, Chief Justice of the Madras high court, was at number one, followed by that of Justice Vineet Saran, Chief Justice of the Orissa high court.
It is the convention that seniority of the judges is determined in accordance with the order of names notified by the government.
The warrants of appointment of the three judges were signed by the President on August 3.
Justice Joseph's elevation to the apex court put an end to a protracted stand-off between the government and the judiciary.
Justice K M Joseph, the Chief Justice of the Uttarakhand High Court, headed a bench which had quashed the imposition of President's Rule in the state in 2016. Uttarakhand was then under the Congress rule.
The collegium had on January 10 recommended the name of Justice Joseph, along with that of senior advocate Indu Malhotra, for elevation to the apex court.
However, the government had returned Justice Joseph's name for reconsideration and gone ahead with the appointment of Justice Indu Malhotra.
The collegium had on May 16 in-principle reiterated the decision to recommend Justice Joseph's name for elevation to the apex court. The recommendation was sent to the government in July and it was accepted.
The number of judges in the top court after the fresh appointments has gone up to 25. There are still six vacancies.
According to the collegium's January 10 resolution, when Justice Joseph's name was recommended for elevation, 'he stands at Sl. No. 45 in the combined seniority of High Court Judges on all-India basis'.
According to the July 16 resolution of the collegium, Justice Banerjee stood at Sl. No. 4 and Justice Saran stood at Sl. No. 5 in the combined seniority of high court judges on all-India basis.
Justice Joseph became a high court judge on October 14, 2004 and he was elevated as a chief justice of high court on July 31, 2014. He will retire on June 16, 2023 as an apex court judge.
Similarly, Justice Banerjee became a high court judge on February 5, 2002 and was made a chief justice of high court on April 5, 2017. She would retire on September 23, 2022.
Justice Saran became a high court judge on February 14, 2002 and was made a chief justice of the high court on February 26, 2016. He will retire as an apex court judge on May 10, 2022.