Judicial Service

Judicial Service

In Chapter VI of part VI of the constitution, special provisions for regulating recruitment and conditions of service of persons appointed to judicial services in the states have been made. Having regard to the importance of judicial service, certain special provisions in chapter VI of Part VI were incorporated. They are:

1. The appointing authority, the minimum qualification and method of recruitment to the cadre of district judges. (Article 233)
2. The appointing authority and provision for consultation regarding recruitment rules to the cadre of judges other than district judges. (article 234)
3. Control over the district courts and subordinate courts and in respect of posting, permission and grant of leave to members of judicial service. (article 235)
4. The definition of the words ‘district judge’ and ‘judicial service’. (Article 236)
5. Bringing all the magistrates under the control of the High Court to ensure their independence. (Article 237)

To the extent of these special provisions, the power of the appropriate legislature and also the rule-making power of the President or the Governor concerned under article 309, as the case maybe, stands curtailed.

Object of special provisions

To enforce the doctrine of separation of powers and the need for having an independent judiciary. The special provsions made in this chapter seek to ensure the independence of the judiciary up to the lowest level, which is as much important as its independence at the highest level. The independence of subordinate judiciary and its security of tenure (including security in the matter of their postings, transfer and the like), are assured by these special provisions and particularly by article 235 vesting the entire administrative control over the subordinate courts in the judges of the High Court, whose security of tenure is ensured by article 218.

All India Judges Association (II) v. UOI: The judicial service is not service in the sense of employment. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of the public offices in the same way as members of the council of ministers and members of the legislature. Those who exercise the state powers are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.

Appointment, posting and promotion of district judges

(Article 233)

Article 233(1): Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

Article 233(2): A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.

The article contains specific provisions relating to the appointment of district judges in respect of the following matters:

1. Appointing authority;
2. Mode of recruitment: Promotion and direct recruitment- Qualification and procedure thereof;
3. Consultation with the High Court.

State of Bihar v. Bal Mukund Sah. : The Governer, who is the appointing authority, almost carries out a ministerial function of appointing recommended candidates both by the public service commission and the High Court at the grass root level and also has to appoint only those candidates that are recommended by the High Court for appointment at the apex level of the district judiciary.

Shamsher Singh v. State of Punjab: The power to make appointment or to order dismissal or removal of a member of judicial service is not a discretionary function of the Governer. It is an executive function required to be exercised by him in accordance with the rules of business framed under article 166.

High Court of Punjab & Haryana v. State of Haryana : Confirmation of persons appointed to be or promoted to be district judges is clearly within the control of the High Court . Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Confirmation of district judges is vested in the control of High Court for the reasons that if after the appointment of district judges the Governor will retain control over district judges until confirmation there will be dual control of district judges. The Governor, however, has the power to pass an order of dismissal, removal or termination on the recommendations of the High Court, which are made in exercise of power of control vested in the High Court. Hence, the view that the order of confirmation is to be passed by the Governor in consultation with the High Court is erroneous. The order of confirmation of district judges and session’s judges is to be passed by the High Court.

All India Judges Association (III) v. UOI : The apex court has directed that the existing two sources of recruitment, viz., promotion and direct recruitment to be replaced byt here sources: (i) direct recruitment to 25% of the posts from advocates by competitive examination both by written and viva voce, (ii) promotion to 50%  of the posts on the basis of merit-cum-seniority for which high courts should prescribe a test to assess the candidates’ legal knowledge and efficiency with adequate knowledge of case law, and (iii) promotion to remaining 25%  of the posts strictly on the basis of merit through limited departmental competitive examination from civil judges (senior division) with not less than 5 years service.

Members of judicial service not eligible for direct recruitment

All India Judges Association (III) v. UOI: suggesting for the third source of recruitment by promotion to 25%  of the posts strictly on the basis of merit through limited departmental competitive examination from civil judges (senior division) with not less than 5 years service, the argument that permitting the members of judicial service to seek direct recruitment would lead to anomalous and absurd consequences such as junior member of the subordinate judicial service superseding senior members of the judicial service has lost its cogent force.