Report No. 116

Chapter VI

Removal of Difficulties

6.1. While discussing the concept, the format and the ancillary aspects of setting up of Indian Judicial Service, apart from the apprehensions voiced, it was seriously suggested that the scheme would face formidable difficulties in the way of its implementation and, therefore, it is better to leave the situation undisturbed. If the fear of possible difficulties would thwart every attempt at change, no change is possible. The present situation is admittedly frustrating and exasperating. To say that no solution can be found is to proclaim bankruptcy of talent and intellect which can indicate change and innovation. Every change may experience some difficulties. They have to be solved but they cannot be allowed to be road blocks in the path of progress.

6.2. The first apprehended difficulty is a possible imbalance in the age factor between persons coming from three independent sources of recruitment which may cause frustration and dejection. This is a very superficial view of the matter. If any one enters the State service in the age between 25 and 30 and hopes to get promotion at the end of every year, to the Indian Judicial Service, he could be anywhere between 32 and 37 while entering the service. A member of the Bar who has put in about 10 years of practice would enter the service at about the same age.

A person coming by way of direct recruitment through competitive examination would be anywhere between 23 and 25 years of age. He would have to undergo two years' training. Thereafter he would have to put in seven years' service at different levels to be eligible to man the post of District Judge. He would also be in the same age group with minor variations which exist even at present. It is at that level that the real competition would start for elevation to the Bench of the High Court. And all have equal opportunity. This difficulty is more imaginary than real.

Two illustrations should set at naught any anxiety on this account. There are three well known cases of persons joining as civil judge or munsif at the lowest level who came to be elevated to the Supreme Court of India. Two other known cases are of persons who came to be recruited as district judges from the Bar, reached the Supreme Court. Two others who entered as district civil court judges were elevated to Supreme Court. For selection of High Court Justices, talent plays an important part and age is a secondary factor. Therefore, the Commission would dismiss this difficulty as unreal.

6.3. Some associations of judicial officers viewed the setting up of the administrative tribunals under the Administrative Tribunals Act, 1985, as a thin end of a wedge for interfering in the judicial services. They say that the moment Indian Judicial Service is set up, the President will acquire power similar to that which he enjoys with regard to other all-India services. The Service will then be treated as a Central Government service. Consequently, administrative tribunals would exercise jurisdiction corroding not only the independence of judiciary but even whittling down the control of the High Court.

In the matter of control of the High Court, care is taken to see that it is in no way whittled down. A specific provision can be made while setting up the service in section 2 of the Administrative Tribunals Act, 1985, that the Administrative Tribunals, will have no jurisdiction over the service. Even in the absence of such a specific exclusionary clause, the Supreme Court having regard to various provisions in the Constitution ensuring independence of judiciary, denied jurisdiction to Andhra Pradesh Administrative Tribunal over subordinate judiciary and the staff of the High Court.1

1. Chief Justice, Andhra Pradesh High Court v. L.V.A. Dikshitulu, AIR 1979 SC 193.

6.4. Thus, having regard to all the aspects of the matter and having regard to the deleterious effects visible on State Judicial Services, it is time that an all-India judicial service is set up. It is so recommended.

D.A. Desai, Chairman.

S.C. Ghose, Member.

Mrs. V.S. Rama Devi, Member-Secretary.

New Delhi,

Dated: 27th November, 1986.