26. ALL INDIA JUDICIAL SERVICE
26.1 Our terms of reference do not require us to indicate the methodology of constituting the All India Judicial Service. It is the responsibility of the Central Government as per decision of the Supreme Court in the All India Judges' Case1. The Supreme Court observed as follows :
"We are of the view that the Law Commission's recommendation should not have been dropped lightly. There is considerable force and merit in the view expressed by the Law Commission. An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary. The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.
Since the setting up of such a service might require amendment of the relevant Articles of the Constitution of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score particularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible. It is in the interest of the health of the judiciary throughout the country that this should be done."
1. AIR 1992 SC 165.
26.2 We have received the status report from the Government of India on the proposal of constituting the All India Judicial Service. The status report dated 10-2-1997 runs as follows :
"The Supreme Court of India in the Writ Petition (Civil) No.1022 of 1989 between All India Judges Association Versus Union of India in its judgment dated 10th April, 1995 has given the direction to Union of India to take immediate measures for the implementation of the direction, to achieve the objective of setting up of All India Judicial Service. Since a Resolution will have to be moved in the Rajya Sabha in this regard, the Government has sought the views of the State Governments / High Courts in the matter.
2. So far we have received comments from 23 States. Comments are still awaited from Governments of Meghalaya and Bihar. The State Governments of Goa, U.P., Mizoram, Punjab, Kerala, Tripura, Sikkim and Orissa agree with the setting up of an All India Judicial Service. The Governments of Himachal Pradesh, Haryana, Tamil Nadu, Madhya Pradesh, Maharashtra, West Bengal, Assam and Rajasthan have given a conditional approval to the proposal. The State Governments of Arunachal Pradesh, Nagaland, Karnataka, Gujarat, Jammu & Kashmir, Manipur and Andhra Pradesh have not favoured the setting up of an All India Judicial Service.
3. Of the 18 High Courts, we have received the views - comments of 16 High Courts. Views of the Calcutta High Court and the High Court of Jammu & Kashmir are awaited. The High Courts of Allahabad, Patna, Guwahati and Rajasthan have favoured the setting up of an All India Judicial Service. The High Courts of Orissa, Sikkim, Andhra Pradesh and Kerala have given their conditional approval to the proposal. The High Courts of Mumbai, Karnataka, Gujarat, Delhi and Madhya Pradesh have no views to offer in this regard in the light of Supreme Court judgment. The High Court of Himachal Pradesh, Punjab and Madras have not favoured the setting up of an All India Judicial Service.
4. In the light of the recommendation of the Law Commission of India, direction of the Supreme Court and views / comments of the State Governments / High Courts, the question of setting up All India Judicial Service through a resolution of the Rajya Sabha and an enactment of Parliament under article 312 of the Constitution is under consideration."
26.3 The Commission in order to assist the Central Government wanted to ascertain the views of the High Courts and State Governments as to the qualifications and method of recruitment to All India Judicial Service. The Commission circulated the following question :
"Q.No.70 The States Reorganisation Commission has observed that creation of All India Service would be a major compelling necessity for the Nation and it has suggested that a proportion of the Higher Judiciary should be recruited by competitive examination at All India Level so as to attract the best of our young graduates to the Judicial Service. The Law Commission of India has in its 14th Report emphasised the need to establish the All India Judicial Service.
The Supreme Court has unequivocally stated that it is in the interest of the health of the judiciary throughout the country that an All India Judicial Service should be constituted. The Supreme Court has, however, left the matter to the Union of India to undertake quickly appropriate exercise in that regard. Please set out the qualifications and method of recruitment to All India Judicial Service?
26.4 Responses received from the High Courts and State Governments may briefly be summarised as follows :
HIGH COURT OF ANDHRA PRADESH :
26.4.1 All India Judicial Services (AIJS) will be composed of Officers selected on All India basis and allotted to State cadre, to remain in that State to ensure the effective control of the High Court in the interest of judicial administration. The initial entry to the AIJS should be to the cadre of Subordinate Judge/Asst. Sessions Judge / Civil Judge (Senior Division). 60% posts in the cadre of Sub-Judges should be allocated directly to the cadre of AIJS. The inservice Judicial Officers may also be permitted to compete for AIJS. There should be a Committee for selection consisting of two Chief Justices of High Courts, one Judge of the Supreme Court, Director of National Judicial Academy and Chairman, UPSC.
GOVERNMENT OF ANDHRA PRADESH :
26.4.2 Government of Andhra Pradesh is not in favour of constitution of AIJS.
PATNA HIGH COURT :
26.4.3 Qualification for recruitment to AIJS should be law graduate and experience of one year at the Bar.
HIGH COURT OF GUJARAT AND GOVERNMENT OF GUJARAT :
26.4.4 Oppose to setting up of AIJS.
HIGH COURT OF JAMMU & KASHMIR :
26.4.5 No comments.
HIGH COURT OF KARNATAKA :
26.4.6 Not furnished reply.
GOVERNMENT OF KARNATAKA :
26.4.7 Opposes the constitution of AIJS.
HIGH COURT OF KERALA AND GOVERNMENT OF KERALA :
26.4.8 No comments.
HIGH COURT OF MADHYA PRADESH :
26.4.9 Candidates with practice of not less than seven years with the maximum age limit of 40 years should alone be considered for AIJS and 40% of the sanctioned strength is to be filled up by direct recruitment.
HIGH COURT OF BOMBAY :
26.4.10Views on AIJS can be expressed only when the Government of India makes a decision as to how it is going to carry out the exercise of constituting the AIJS.
GOVERNMENT OF MAHARASHTRA :
26.4.11 Seven years practice as an Advocate should be prescribed for AIJS.
HIGH COURT OF ORISSA :
26.4.12 The recruitment should be akin to the Indian Civil Service Examination and qualification for recruitment should be LL.B degree.
HIGH COURT OF PUNJAB & HARYANA :
26.4.13 Not in favour of formation of AIJS, as it will negate the control of the High Court under Article 235 of the Constitution. If created, it may be on par with the Central Services such as IAS, IPS, IFS etc.
RAJASTHAN HIGH COURT :
26.4.14 AIJS should consist of promotees to the higher judiciary from the subordinate judiciary of the State only and for direct recruits, 7 years Bar practice should be prescribed with the minimum age of 35 years. Inservice people should be allowed to compete for AIJS.
HIGH COURT OF MADRAS AND GOVERNMENT OF TAMIL NADU :
26.4.15 Not in favour of AIJS.
ALLAHABAD HIGH COURT AND GOVERNMENT OF UTTAR PRADESH :
26.4.16 AIJS can be constituted by absorbing all the existing members of the State Judicial Service on the lines of IFS (Indian Forest Service). Thereafter, recruitment should be made through National Judicial Service Commission. Fresh law graduates should be allowed to compete.
CALCUTTA HIGH COURT :
26.4.17 AIJS has to be constituted in terms of the Constitution and observations of the Supreme Court and the Law Commission. Recruitment must be by the National Judicial Service Commission. The age limit may be 30 to 33 years and qualification for recruitment must be a degree in law.
GOVERNMENT OF WEST BENGAL :
26.4.18 Not in favour of AIJS.
26.5 It will be seen from the above comments and views that some High Courts and State Governments are of the view that the power of control under Article 235 of the Constitution will be belittled if AIJS is constituted. They are perhaps under the impression that AIJS is an independent Service, unconnected with the State Judicial Service.
SERVICE ASSOCIATIONS :
26.6 Invariably, Officers' Associations have opposed the formation of AIJS, perhaps on the ground that their seniority will be affected and their chances of promotion will be diminished.
OUR RECOMMENDATIONS :
26.7 In our opinion, it is necessary to allay these apprehensions while constituting AIJS. Bearing that in mind, we indicate herein the broad outlines for consideration of the Central Government for constituting the AIJS :
(i) The AIJS could be constituted only in the cadre of District Judges as per the provisions of Article 312(3) of the Constitution. The District Judges directly recruited and promoted should constitute the AIJS.
(ii) The selection for direct recruitment should be by National Judicial commission / UPSC and promotees by the respective High Courts.
(iii) The qualification for direct recruitment to AIJS should be in conformity with that prescribed under Article 233(2) of the Constitution - i.e., Advocate / Pleader who has got not less than 7 years Bar practice.
(iv) Service Judges also should be allowed to compete for recruitment to AIJS, by appropriately amending Article 233(2) of the Constitution. (See V.II, Chapter 11).
(v) Not exceeding 25% of the posts in the cadre of District Judges in every State should be ear-marked for direct recruitment.
(vi) The age limit for recruitment to AIJS should be between 35 and 45 years.
(vii) The procedure for selection shall be by written examination followed by viva voce.
(See: V. II, Chapter 10).
(viii) Appointment : The National Judicial Commission / UPSC, after selecting the candidates for direct recruitment to the cadre of District Judges, must allocate to the States / UTs, the candidates equal to the vacancies that are surrendered by them. The High Court thereupon will recommend those names to the Governor for appointment as per Article 233 of the Constitution.
(ix) Training : The prescribed training is only after appointment.
(x) Seniority : All India Seniority is as per the ranking in the select list..
(xi) Inter-se Seniority in the State / UT : The inter-se seniority between the direct recruits and promotees shall be determined according to the date of allotment and date of promotion.
(xii) Such direct recruits must thus be annexed to the respective State Judicial Service within the three-tier system.
(xiii) Court Language : The recording of the deposition in all Courts should be in two languages - (i) Regional language (to be recorded by the Court Officer); and (ii) English (by the Presiding Officer).
26.8 We are of the opinion that, if the AIJS is constituted in the manner indicated, the apprehension of the High Courts, the Service Judges and the Governments could be minimised, if not totally eliminated.
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