Report No. 80
5.6. Summary of present practice by study team.-
Regarding the appointment of High Court Judges, the present practice has been summarised in the report1 of the Study Team on Centre-State Relations of the Administrative Reforms Commission and the same reads:
"13.5. According to a Memorandum of Procedure drawn up as a drill to implement this provision, when a permanent vacancy is expected to arise in the office of a Judge, the Chief Justice communicates, as early as possible, to the Chief Minister of the State his views as to the person to be selected for permanent appointment. The Chief Minister, in consultation with the Governor, forwards his recommendation to the Union Minister of Home Affairs, along with full details of the person recommended.
When the Chief Minister or the Governor proposes to recommend a person different from the one put forward by the Chief Justice, the Chief Justice is informed accordingly and his comments invited. These comments are forwarded along with the communication from the Chief Minister to the Union Minister of Home Affairs,2 who, in consultation with the Chief Justice of India and the Prime Minister, advises the President as to the selection. The same procedure is observed with regard to the appointment of the Chief Justice except that the recommendation for the appointment of a Chief Justice originates from the Chief Minister.
13.6. The correspondence between the Chief Justice and the Chief Minister and the correspondence between the Chief Minister and the Governor is made in writing and copies of the correspondence are forwarded to the Union Minister of Home Affairs along with the Chief Minister's recommendation. The Chief Justice has, however, recently (ands after consideration of the Law Commission's report) been authorised to send directly to the Union Minister of Home Affairs and the Chief Justice of India a copy of his correspondence with the Chief Minister.
13.7. As soon as the appointment is approved, the Home Secretary informs the Chief Minister, who obtains from the person selected-
(a) a certificate of physical fitness signed by the Civil Surgeon or the District Medical Officers; and
(b) a certificate of the date of his birth.
The Chief Minister forwards the documents to the Ministry of Home Affairs. Medical certificates are obtained from all persons selected for appointment whether they are at the time of appointment in the service of state government or not. After the warrant of appointment is signed by the President the appointment is announced and the Home Ministry issues the necessary notification in the Gazette of India.
13.8. The procedure for the appointment of additional judges is substantially the same. The general policy is not to appoint members of the Bar as acting judges and to appoint them as additional judges only if they are likely to be appointed to permanent vacancies during their period of tenure as additional judges.
13.9. According to Article 163 of the Constitution, the Council of Ministers with the Chief Minister at the head is to aid and advise the Governor in the exercise of his functions, except in those cases where the Governor is required to exercise his functions or any of them in his discretion. In the matter of appointment of judges of a High Court, the Governor acts not in his discretion but on the advice of the Chief Minister."
1. Study Team of the Administrative Reforms Commission on Centre-State Relations Report, (1967), Vol. 1, pp. 182-184, paras. 13.5 to 13.9.
2. Minister of Law and Justice has now been entrusted with the above functions of the Minister of Home Affairs in pursuance of the recommendations of Administrative Reforms Commission.