Report No. 116

Future Recruitment to Service

5.4. Every State has framed and promulgated rules for recruitment to the State Judicial Service.1 In view of the provision contained in Article 234, ordinarily recruitment is made to the entry cadre at the lowest level in State Judicial Service by the State Government in consultation with the Public Service Commission as also in consultation with the High Court exercising jurisdiction in relation to such State. The State Judicial Service provides vertical promotion up to, and inclusive of, the post of district judge. In every State, there is some kind of direct recruitment to the post of district judge. The percentage of direct recruitment to the total strength of the cadre of district judge varies from State to State. But cases are not unknown where such direct recruitment to the cadre of district judge is as high as 50%. In any case, in no State it is lower than 25%.

It would be highly unjust and iniquitous to provide for direct recruitment by competitive examination to the tune of 100% in the Indian Judicial .Service. Such an approach would be destructive of the State Judicial Service and it would be a disincentive to anyone joining State Judicial Service. While examining the relevance and the pertinence of the objections that the very formation of Indian Judicial Service would be causing frustration to the members of the subordinate judicial service, it was indicated that a fair proportion of the posts in Indian Judicial Service would be reserved for promotion from members of the State Judicial Service.

It is, therefore, imperative to ascertain a just and fair proportion of percentage of posts to be reserved for being filled in from the sources, namely, direct recruitment by competitive examination and promotion from State Judicial Service. While working out the fair proportion, a singular feature of the judicial service, namely, that some senior members of the Bar are directly recruited as district judges must be kept in view. This source of availability of experienced members of the Bar to man posts of district judges and thereby to enrich the service should be kept open. Accordingly, we will have to take into account this third source of recruitment.

However, as a fairly high percentage of posts in Indian Judicial Service are being reserved for direct recruitment by competitive examination, the percentage of posts to be reserved for direct recruitment from experienced members of the Bar as district judges should be worked out by keeping in view the existing situation in various States. While meticulously examining this question of division of posts for recruitment from three independent sources with some anxiety, we came upon various suggestions in this behalf. A draft scheme for constitution of all-India judicial service proposed by the Government of India to the Conference of Chief Ministers. Law Ministers and Chief Justices of High Courts convened by the Ministry of Law and Justice proposed that 50% of the sanctioned strength of posts in Indian Judicial Service should be filled in by direct recruitment by competitive examination and the remaining 50% by promotion from State Judicial Service.

This arithmetic of equal division between two services overlooks the existing fact that why State has provided for direct recruitment to the cadre of district judge from the experienced and senior members of the Bar. Such experienced members are not likely to appear at competitive examination. This fruitful source of recruitment would be dried up if this scheme is accepted as a whole. The scheme proposed by the High Court of Himachal Pradesh presided over by Chief Justice, Shri P.D. Desai, who submitted a detailed note in this behalf, suggested that 50% of the total strength of posts in Indian Judicial Service should be filled in by promotion from the members of the State Judicial Service: 25% of the posts by competitive examination and 25% by selection from amongst members of the Bar.

This approach strikes at the very raison d'etre of setting up Indian Judicial Service. The whole purpose behind setting up of Indian Judicial Service is to attract to the judiciary capable young graduates fresh from universities, from all over the country so that the cream of talented men being drawn into administrative service may find an attractive diversion to Indian Judicial Service. They will be free from local prejudices, caste and community divisions and local attachments. The suggestion that only 25% of the posts should be available to young talented fresh graduates for recruitment to Indian Judicial Service leaving 75% to the present method of recruitment would not create an impact solely needed for rejuvenating the subordinate judicial service.

The genesis of this suggestion appears to be that in IAS, 75% of the posts are filled in on the result of competitive examination leaving 25% of posts to be filled in by promotion from State Civil Service. Law Commission of India recommended that 40% of the posts should be reserved for direct recruitment by competitive examination and of the remaining 60%, 30% of the posts should be filled in by promotion from the members of the State Judicial Service and the balance of 30% of posts should be filled by direct recruitment from the members of the Bar of sufficient seniority and standing.2 Numerous different proportions have been suggested in this behalf such as 66 2/3% by promotion, 33 1/3% by direct recruitment by Chief Justice of Calcutta High Court.

Having regard to all the aspects of the matter and to strike a just balance between competing interests, the Commission is of the view that 40% of the sanctioned strength of posts in Indian Judicial Service shall be filled in by direct recruitment on the result of a competitive examination to be held by a body styled as National Judicial Service Commission. Of the remaining 60% of posts, 40% shall be filled in by promotion from the State Judicial Service to be made on the recommendation of the High Court keeping in view the quota of posts allotted to each State by the National Judicial. Service Commission. The remaining 20% of posts shall be filled in by direct recruitment from amongst senior and experienced members of the Bar who have put in not less than seven years of practice on the recommendation of the High Court of each State by the National Judicial Service Commission.

Rigid adherence to quota rule has caused untold harm to the services. Flexibility in this behalf is the need of the day. Therefore the law for setting up Indian Judicial Service must provide that the quota prescribed must be adhered to as far as possible keeping in view the exigencies of service. If the quota allotted to a source remains unutilised, recruitment be made from the remaining sources raising the quota proportionately for the year. At any rate carry forward of vacancies must be avoided.

Recruitment to Indian Judicial Service is thus to be from three sources:-

(1) direct recruitment by competitive examination to the extent of 40% of sanctioned strength;

(2) promotion from State Judicial Service to the extent of 40% of the sanctioned strength;

(3) recruitment from senior experienced members of the Bar who have put in not less than seven years of practice to the extent of 20%.

1. In tha State of West Bengal direct recruitment has been done away with by statue.

2. Law Commission of India, Fourteenth Report, Vol. I, Chapter a, para. 67.