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Report No. 116

Initial Constitution of Service

5.3. In view of the provision contained in Article 312(3), the oft-repeated suggestion that the Indian Judicial Service should include two tiers of service from grass-root to that of the district judge must be rejected as untenable. Article 312(3) bars inclusion of any post in Indian Judicial Service inferior to that of a district judge as defined in Article 236. Therefore, at the time of initial constitution of the service, the existing posts which are comprehended in the expression 'district judge', as defined in Article 236, can alone be taken into consideration for inclusion in Indian Judicial Service. The expression 'district judge' has been defined in Article 236(a) to read as under:-

'the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge'. Designation of various layers of judicial service up to the cadre of district judge differ from State to State. However, most of the States have divided State Judicial Service into what are designated as higher or superior judicial service and subordinate or lower State judicial service. In most of the States, entry at the grassroot level is to the cadre of munsif or district munsif (as in Tamil Nadu) and Civil Judge (Junior Division) (as in Maharashtra and Gujarat).

As the proposed Indian Judicial Service will have also promotional quota from the State Judicial Service, it is absolutely necessary to rationalise the designations and cadres in judicial service below the Indian Judicial Service. It may be designated as State Judicial Service. Having regard to earlier recommendation,1 the entry cadre in State Judicial Service should be designated as Civil Judge (Junior Division) and Judicial Magistrate first class. In this cadre, the incumbent will have pecuniary jurisdiction on the civil side not exceeding Rs. 20,000 and on the criminal side will have all the powers conferred on Judicial Magistrate First Class by the Code of Criminal Procedure, 1973.

If pecuniary limit is considered a legacy of the past, the other way to organise and prescribe jurisdiction is to specify heads of disputes amenable to the jurisdiction of the incumbent in service at entry level leaving the rest to the first promotional stage court. The next promotional stage should be Civil Judge (Senior Division)/a Judge of the Small Causes Court/ Metropolitan Magistrate. The designation would be functional depending upon the assignment of work in the scheme of things. The posts with the aforementioned designations will be comprehended in the service to be designated State Judicial Service.

The posts bearing the designation District Judge, Assistant District Judge, Chief Judge of Small Causes Court, Chief Metropolitan Magistrate, Sessions Judge, Additional Judge, and Assistant Sessions Judge will be comprehended and included in Indian Judicial Service. These are functional designations drawn from various statutes like the Code of Civil Procedure, the Code of Criminal Procedure, the Presidency and Provincial Small Causes Courts Act etc.

The law to be enacted pursuant to the resolution of Rajya Sabha for setting up Indian Judicial Service will specify a date, to be styled as appointed date, on which day Indian Judicial Service will be constituted. At the time of the initial constitution of the Service, persons holding posts in higher judicial service in various States, and where no such designation as higher judicial service exists, all those persons holding the posts having the designation set out in Article 236 or their equivalent posts, will be included in Indian Judicial Service. They will all become members of Indian Judicial Service from the date of initial constitution. In the event of a dispute or disagreement about equivalence of posts, the matter should be referred to the National Judicial Service Commission whose decision will be final.

There were suggestions that a screening committee should be set up even in respect of those who are members of the State higher judicial service or holding the posts having various designations as set out in Article 236 to screen such persons to weed out the incompetent and unsuitable. That would necessarily create heart-burning in view of the fact that such persons must have already reached the stage by promotion and have become members of the higher judicial service where such designations exist. Where no such designations exist, our scrutiny shows that the holders of designated posts as set out in Article 236 have come usually by a second stage of promotion. Therefore, at the time of initial constitution of service, no screening need be done.

In order to facilitate movement from State Judicial Service to Indian Judicial Service, it is advisable to retain the designations of various posts included in the expression "district judge" as set out in Article 236 save and except changing Chief Presidency Magistrate and Additional Chief Presidency Magistrate2 to mean Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate respectively. All States thereafter will have common designations for posts included in Indian Judicial Service as set out in Article 236. Necessary provisions will be incorporated in the legislation for setting up Indian Judicial Service.

This will also determine the initial strength of the service being the sum total of members holding posts included in the expression "district judge", who would become members of Indian Judicial Service. The strength can he varied in future depending upon the needs of the Service by the President of India who would undertake a review of the strength and the needs of Service at regular interval of five years in consultation with National Judicial Service Commission. Review must be statewise and cadre strength of each State must be determined depending upon various factors such as workload, rate of disposal, arrears and average time taken in disposal of causes and controversies.

1. Law Commission of India, Fourteenth Report. vol. I, Chapter IX, para. 21.

2. Code of Criminal Procedure, 1973, section 6.

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