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Report No. 118

Mode of Recruitment

2.4. in a majority of States-44 out of 19 States-whose rules for recruitment to Subordinate Judiciary have been analysed by the Law Commission, candidates for recruitment to subordinate judiciary are selected on the combined result of written and viva voce tests. The States of Assam and Punjab do not provide for viva voce test and the selection is made on the basis of the result of a written tests held by Public Service Commission. At the other end of the spectrum, in Maharashtra and Gujarat, there is no provision for holding a written test and the candidates are selected on the basis of viva voce test only.

In this connection, it is necessary to highlight the divergence in the approach in the matter of recruitment methods adopted by various States. Some States provide for direct recruitment and recruitment by transfer from other departments of the State Service or by holding tests which are open exclusively to departmental candidates of State Governments. The recruitment by transfer has sinister implications.

It has proved nefarious. A gross case of total departure from the Constitutional mode of recruitment that has come to the notice of the Law Commission is of Tamil Nadu where, according to as authentic an information as can be had at present, 260 posts of Munsif Magistrates are manned by persons who have not been recruited to subordinate judiciary but are ad hoc transferees from the other departments.

In fact, this total departure from the constitutional mandate and a back-door re-unification of separated executive and judiciary so agitated the minds of the members of the legal profession in Tamil Nadu State that there was a prolonged strike by the members of the Bar for a very long period focussing attention on the failure to make recruitment to subordinate judiciary according to rules. Similarly, in the States of Punjab and Haryana, the rules permit for appointment of members of Civil Service (Executive Branch) by transfer as subordinate judges although such transferees do not possess essential minimum qualifications for recruitment as subordinate judges.

This is another gross violation of the norms prescribed for recruitment. In fact, these are the various devices by which attempt is made to re-unite the separated executive and judiciary as mandated by Article 50 of the Constitution. The Recruitment Rules of four States provide for emergency recruitment in which departure from specific requirements and essential qualifications can be made with impunity. One fails to understand how in the matter of recruitment to subordinate judicial service, an emergency situation may arise.

One can always have a preview of the requirements including the one necessitated by review of strength much in advance and if, in the meantime, the High Court of the State is charged with a duty to make recruitment from the market by varying the procedure which gives equal opportunity to all concerned to compete for the same in view of the overpopulated legal profession, the recruitment can easily, conveniently and within a time-frame, be made.

The emergency cannot, be even contemplated. In fact, it is another dubious device of encroachment in the matter of appointment to judiciary. The States of Tamil Nadu and Kerala have two separate sets of rules for recruitment to civil judicial posts and magisterial posts, though both are under the administrative and judicial control of the High Court. The Law Commission is informed by the High Court of Kerala that steps are in progress for integrating the civil and criminal wings of the judiciary in the State.

Method of Appointments to Subordinate Courts, Subordinate Judiciary Back

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