Report No. 118
Power of Appointment
2.2. In the matter of recruitment of persons other than a district judge to the judicial service of the State, the power to make appointments is conferred on the Governor which he exercises in accordance with 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. Though at one point of time, a doubt was expressed whether the State Public Service Commission and the High Court had to be consulted in the matter of making rules or in the matter of making appointments as envisaged by Article 234.
The view that has held the field is that the Governor shall make the recruitment rules in consultation with the State Public Service Commission and the High Court exercising jurisdiction over it. In exercise of the power conferred by Article 234, every State has made rules for recruitment of persons other than district judges to the State Judicial Service. These rules broadly lay down the age of entry, academic qualifications, practice at the Bar, if any, et al.
Except where recruitment is by promotion, the State Public Service Commissions undertake the programme of recruitment on an indent received from the High Court about the existing and possible vacancies in the cadre in the near future. The State Public Service Commission invites applications by issuing advertisements setting out, therein the minimum qualifications and other requirements. Some States provide for written examination to be conducted by Public Service Commissions and/or a viva voce test.
Some other States provide for a viva voce test by members of the State Public Service Commission. Some States provide for inviting a sitting Judge of the High Court to be nominated by the Chief Justice for participating in the viva voce test as an expert. But, while he can record his opinion, he is not entitled to participate in the decision making process or in assigning marks, evaluating the performance of each candidate.
The Public Service Commission submits a list of candidates recommended by it as being eligible for appointment. The State Government makes the appointments from the list. The relevant rules in this behalf vary from State to State. A comprehensive table setting out the broad requirements of rules in each State, as made available to the Law Commission representing a wide spectrum of information, is set out in Annexure II.