Report No. 77
9.16. Appointment of members of the bar for disposal of old cases.-
It may, however, be not enough to have retired judicial officers to deal with old cases. Some special recruitment may have to be made from bright young members of the Bar who have practised for at least seven years for disposal of old cases. These members of the Bar would necessarily have to be given a higher start and on satisfactory performance, be ultimately absorbed in service as District and Sessions Judges or Additional District and Sessions Judges.
This fact might act as an incentive and induce bright young lawyers to join the service. Without that assurance it would not be possible to attract bright lawyers who have put in more than seven years practice to the job. It is most unlikely that they would offer themselves for the special recruitment if the prospects be that after the clearance of arrears, they would have to revert back to their practice.
It also seems apposite that the procedure for the special recruitment may be substantially the same as that for appointment of District Judges from the Bar. The reason for that is that in the matter of selection for a judicial post from amongst the members of the Bar with some standing, the High Court is in a much better position compared to any other agency to appraise the merit and suitability of the candidate.
According to Article 233 of the Constitution, appointment of persons to be District Judges in any State has to be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State, while according to Article 234, appointment of persons other than District Judges to the judicial service of a State has to be made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
The expression "District Judge" includes, inter alia, as mentioned in Article 236, Assistant District judge and Assistant Sessions Judge. If the recruitment of the members of the Bar has to be in accordance with Article 233, in that event the persons to be appointed as a result of special recruitment may be designated as Assistant District and Sessions Judges till such time as they are appointed District and Sessions Judges or Additional District and Sessions Judges.
One difficulty which may, however, be experienced in designating them as Assistant District and Sessions Judges is that only such of the criminal cases would be heard by them as are triable by the Court of Sessions. Another snag in the proposal is that though there is reference to Assistant District Judge in Article 236, there are so far as we are aware no Assistant District Judges functioning in any State. The concept of Assistant District Judges would thus make a departure from the known hierarchy of judicial officers.
In the alternative, if the recruitment is to be governed by Article 234, in that event such rules may be framed for the special recruitment as may conform more or less with the procedure prescribed by Article 233. Perhaps the latter alternative in view of the difficulties pointed out earlier may seem preferable. We may add that the practice of recruiting bright young lawyers who have practiced at the Bar for at least seven years for the post of higher judicial service is already in vogue in most of the States.