Justice Joseph's SC appointment: The question of approval and seniority

Seniority has evolved into a nonsensical rule and must be discarded; even as arbitrariness is inherent in all rules, seniority rule for appointments has a bearing on the efficiency of public policy

Some people are very upset over the allotted seniority of Justice K M Joseph. He has become a judge of the Supreme Court (SC) and will be placed below two other judges who have the same date of appointment.

The SC Collegium which recommended his name thinks he should be above them because it recommended his name first back in January. The government has applied a different rule, namely, that his name was the last to be approved by the government so he comes at the bottom. This has been given a Government vs SC colouring.

What everyone forgets, however, is that all rules – when everything possible has been considered – have an element of inherent arbitrariness in them. There is no exception to this problem of arbitrariness which often leads to counter-intuitive outcomes.

Let me give an example.

In the late March of 2000, someone I know was appointed as an assistant professor. At the time of her appointment, she was teaching in a school and decided out of the goodness of her heart to stay on till the end of term in May so that students would not be left high and dry. But she would have been well within her rights to leave immediately.

Meanwhile, another person who had also been appointed – and who was seven years her junior – had no such constraints because he was unemployed. He joined on April 2and thus became 'senior' to her as she joined a month later in May.

Unfortunately, the poor man died in 2006, but had he been alive today, the lady would have had someone who was seven years her junior as her 'senior'.

On another occasion, this time in the Ministry of External Affairs, when the time came to appoint a new foreign secretary, the minister was importuned by a number of officers aspiring to the job.

He took the easy way out and appointed the senior-most among them even though the person he appointed was the least equipped for the job. The ministry then appointed a minder for the new foreign secretary, whose term, mercifully, was just about a year.

This is what the emphasis on seniority does. It leads to absurd results.

The private sector has no such hang-ups. A friend of mine became the boss of a consumer goods company at the age of 30 and remained in that post for 20 years. The company did spectacularly well under his command.

Many newspaper editors have also been appointed when they were very young, including one who is now a minister. He was just 28 when he became an editor and a highly successful one at that.

I have not been able to find any literature that provides an explanation for seniority to be the only criterion for selection to jobs among different agents of the State. It seems as if it has simply been taken for granted that, all other things being the same, it is seniority which will determine the outcome. Seniority has sometimes been determined by whether a person joined in the morning (AM) or afternoon (PM)!

Thus, there is no logic to it, other than that it prevents favouritism and binds the appointing authority to an objective criterion, never mind that it is based on time, rather than merit.

And without any logic other than the chronometer or the calendar, seniority has evolved into a nonsensical rule which must be discarded on the grounds that even though arbitrariness is inherent in all rules, in the seniority rule for appointing agents of the State is especially pernicious because it has a direct bearing on the efficiency and efficacy of public policy.

Or, as the Americans would say, it sucks!