ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 4

         ഷെട്ടി കമ്മീഷന്‍ റിപ്പോര്‍ട്ട് 4
 9.16 With these respective cadre strengths, in almost all the States, the Civil Judge (Junior Division) has to wait for about 10 years to get first promotion to the cadre of Civil Judges (Senior Division).
9.17 In States like Kerala, Rajasthan, Sikkim, Uttar Pradesh and West Bengal, no Civil Judge (Junior Division) gets the first promotion till he completes 10 years of service.
9.18 In Bihar, such unfortunate Civil Judges (Junior Division) have to wait nearly 20 years to get such promotion.
9.19 In Jammu & Kashmir, Maharashtra and Tamil Nadu, the position seems to be slightly better. Civil Judges (Junior Division) in these States could generally get promotion after about 8 years of service.
9.20 In Gujarat, having regard to the mixed cadre of Civil Judges (Senior Division), first promotion to the Civil Judge (Junior Division) would be available to him only after 11 to 12 years.
9.21 In these circumstances, whether it is prudent to make the Civil Judges (Senior Division) a mixed cadre for promotees and direct recruits? Even in States where the Civil Judges (Senior Division) is a mixed cadre of promotees and direct recruits, it would be frustrating for Civil Judges (Junior Division) to wait for first promotion for about 10 years. If that cadre is made a mixed cadre, it would further diminish the promotional opportunity available to the Civil Judges (Junior Division) which according to us is not in the interest of promoting efficiency.
9.22 We, therefore, fully concur with the views expressed by the Judicial Officers€ Associations all over the country and some of the High Courts as indicated above.
9.33 We recommend that the cadre of Civil Judges (Senior Division) should be constituted purely as promotional cadre.
9.34 We, however, hasten to add that there should be a minimum eligibility for Civil Judge (Jr. Divn.) for being considered for promotion to Civil Judge (Sr. Divn.). Having regard to the rights, duties and responsibilities of the Civil Judge (Sr. Divn.), we consider that the minimum experience of five years as Civil Judge (Jr. Divn.) is a must for earning eligibility for promotion as Civil Judge (Sr. Divn.). We have also included this principle in the draft 'JUDICIAL SERVICE RULES' which is annexed to our Report.

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10. DIRECT RECRUITMENT TO THE CADRE OF DISTRICT JUDGES
- PROFILE, PROBLEMS AND PROGNOSIS
10.1 The mixed cadre of District Judges consisting of promotees and direct recruits in every State Judicial Service was intended to promote efficiency in the administration of justice. But the fact remains otherwise. There is a lot of discontentment between the direct recruits of District Judges on one side and promotees on the other. The two classes are generally not in cordial terms, nay, in some States, they are not even on talking terms. They are forming separate Associations. They are locked up in legal battles fighting up to the Apex Court. They made separate representations to this Commission.
10.2 The root cause for all these unfortunate fall out seems to be the mode of direct recruitment followed by High Courts and determining the inter-se seniority between the promotees and the direct recruits. The High Courts are not unaware of this bitterness and discontentment in the service, yet seem to have done little to improve the method of direct recruitment so as to remove the grievance of promotees.
10.3 The common grievance of the service judges in the lower cadre in all the States, and which grievance is also highlighted in the Memorandum of All India Judges€ Association is that the hopes and aspirations of judges who have entered the lowest rung of the judicial service have been shattered for want of adequate promotional opportunity. It was complained that the unreasonable quota reserved and unscientific method followed for direct recruitment of District Judges have practically driven the service judges to despair and despondency. It was said that they could never think of becoming Principal District Judges. It was pointed out that the Advocates are recruited as District Judges at relatively younger age, varying from 32 to 40 years, while service judges would get a chance of promotion as District Judges only at their advanced age. Such direct recruits would be ranked above the promotees in the seniority list and occupy all the central posts. They also deprive the promotees the chance to reach the High Court.
10.4 How the ill-managed direct recruitment could jeopardise the already bleak chance of promotion of service judges has been pointed out in the Memorandum of the All India Judges€ Association by citing the following instance in the State of Bihar:
"It is reported that due to certain reasons, no €Direct Recruitment€ of Addl. District Judges took place in the State of Bihar between the years 1982 and 1990. Then suddenly as many as 30 Addl. District Judges were inducted in the Higher Judicial Cadre as Direct Recruits in 1991. Consequently, the lower judicial cadre Officers had not yet overcome the ill-effects of such a bolt from the blue (because such a big batch of Officers, younger in age, had tended to block their promotional avenues), when in the year 1997, the High Court dealt the severest blow by inducting a €Jumbo Batch€ of 53 Addl. District Judges at one go. In this manner, these two batches comprising 83 Officers, much younger in age and inducted during a short span of 7 years, was a fatal blow to the Judges manning the lower cadres since their service career has suddenly become bleak; firstly, as Addl. District Judges, and, secondly, if some lucky chap does manage €to raise his head over the water€, then there would be slim probability of his becoming a District Judge (or Principal District Judge), and even if such a possibility occurs in the case of still luckier ones (and for a short duration), then certainly he or she would stand no chance of elevation to the Bench. In other words, an apparent policy of the Patna High Court does not seem to give due regard to the service career of an overwhelming majority of the District Judiciary."
10.5 Of course, this has been refuted by one of the direct recruits from Bihar cadre during the course of hearing and he squarely put the blame on service judges for having resorted to several litigations to delay the direct recruitment.
10.6 There are many other complaints in this regard, but we do not want to refer to them in this discussion. But one thing seems to be clear. The direct recruitment to the cadre of District Judges, instead of creating harmony and promoting efficiency in the service has been eroding the integrity and independence of the judiciary by ill-will and bickerings. We can ill-afford to allow such state of affairs to continue in the judiciary.
10.7 The Commission considers that the method of direct recruitment to the cadre of District Judges requires to be radically overhauled so as to ensure fairness to promotees as well as to direct recruits.
10.8 It is with that object, the Commission has formulated the following questions for the views and comments from the concerned:
(1) What are the qualifications prescribed in your State for direct recruitment to the cadre of District Judges?
(2) The percentage for direct recruitment to the cadre of District Judges varies from State to State. In West Bengal, there is no direct recruitment to the cadre of District Judges. What is the position in your State? What according to you should be the proper percentage for such recruitment to avoid imbalance and impairment of the rights of the promotees?
(3) It is complained that in some States direct recruitment to the cadre of District Judges is made at the age of 32 to 35, prejudicially affecting the rights and prospects of the promotees. What are your views in this regard?
10.9 A wide variety of views and comments have been received in response to these questions and they will be presently examined.
10.10 We may first refer to the Constitutional provisions relating to appointment of District Judges. They are as follows:
Article 236: Interpretation, - In this Chapter -
(a) the expression "district judge" includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
(b) xxx xxx xxx
Article 233: Appointment of district judges, -
(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.
(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.

10.11 It will be seen that the two clauses of Article 233 contemplate recruitment to the cadre of District Judges by promotion from the subordinate judicial service as well as by direct recruitment from Pleaders or Advocates having not less than seven years of practice.
10.12 In SUSHMA SURI AND OTHERS v. GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI AND ANOTHER,1 the Supreme Court has stated that seven years practice specified under Article 233(2) should not mean that the practice should be only as members of the Bar. Such a construction would be too narrow and would defeat the object of Recruitment.
10.13 With reference to the scope of the Rules under Delhi Higher Judicial Service Rules and with reference to Rule 49 framed by the Bar Council of India, the Court further observed that:
"Article 233(2) should not be restricted only to Advocates who are practicing as members of the Bar. Such a construction would be too narrow defeating the object of recruitment. The object is to get the persons of necessary qualification, experience and knowledge of life."
The Court further observed:
" A Government counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description, cannot be stated to be irrelevant nor detrimental to selection to the posts of Higher Judicial Service. The expression € members of the Bar € in the relevant rule would only mean that a particular class of persons who are actually practicing in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a public prosecutor or a
11. WHETHER THE LOWER JUDICIAL SERVICE PERSONNEL COULD BE MADE ELIGIBLE FOR DIRECT RECRUITMENT TO THE POST OF DISTRICT JUDGES ?
11.1 The Constitution, as it stands, does not provide for consideration of persons who are already in judicial service for direct recruitment to the cadre of District Judges.
11.2 Article 233 is as follows:
"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.
"(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."
11.3 The scope of this Article has come up for consideration before the Supreme Court in the following cases:
In RAMESHWAR DAYAL v. STATE OF PUNJAB1, S.K. Das J. observed: (at p.822)
". . . . . . . . . . . Article 233 is a self contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under cl. (1), the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already in service, a

1. AIR 1961 SC 816.
qualification is laid down in cl. (2) and all that is required is that he should be an advocate or pleader of seven years’ standing."
In CHANDRA MOHAN v. STATE OF UTTAR PRADESH2, Subba Rao, C.J. after referring to Article 233, 234, 235, 236 and 237 stated: (at p.1993)
"The gist of the said provisions may be stated thus: 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. There are two sources of recruitment, namely, (i) service of the Union or of the State, and (ii) members of the Bar. The said judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of persons to the judicial service other than as District Judges, they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the district courts and courts subordinate thereto, subject to certain prescribed limitations."
11.4 Subba Rao, C.J., then proceeded to consider whether the Government could appoint as District Judges persons from services other than the judicial service. After pointing out that Art. 233(1) was a declaration of the general power of the Governor in the matter of appointment of District Judges and it did not lay down the qualifications of the candidates to be appointed or denoted the sources from which the recruitment had to be made, he proceeded to state,


2. AIR 1966 SC 1987.
"But the sources of recruitment are indicated in cl. (2) thereof. Under cl.(2) of Art.233 two sources are given, namely, (i) person in the service of the Union or of the State, and
(ii) Advocate or Pleader."
11.5 Posing the question whether the expression "the service of the Union or of the State" meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State, the learned Chief Justice emphatically held that the expression "the service" in Art. 233(2) could only mean the judicial service.
11.6 In SATYA NARAIN SINGH v. HIGH COURT OF JUDICATURE AT ALLAHABAD3, CHINNAPPA REDDY J. observed:
" Two points straightaway project themselves when the two clauses of Art. 233 are read:
The first clause deals with ‘appointments of persons to be, and the posting and promotion of, District Judges in any State’ while the second clause is confined in its application to persons ‘not already in the service of the Union or of the State’. We may mention here that ‘Service of the Union or of the State’ has been interpreted by this Court to mean judicial service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are

3. AIR 1985 SC 308.

members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously."
11.7 The grievance of Service Judges however, is that they are unjustly denied of an opportunity to compete for direct Recruitment to District Judge posts, when similar facility is provided in other Administrative services.
11.8 The Commission, with a view to ascertain the views and comments from all concerned in this regard, included the following questions in the general Questionnaire:
Q.No.8.3 :
Do you think that the officers in the lower judicial service should be allowed to compete for direct recruitment to the District Judge cadre?
If so, what should be the experience in service for such Officers and how Article 233 of the Constitution of India should be amended? Explanation (aa) to Sub-Article (2) of Article 217 may be noted in this context.
Q.No.8.4 :
Has any weightage been given in your State / UT in terms of increments and / or retirement benefits for direct recruits to the cadre of District Judges who possess more than the minimum number of years of practice at the Bar?

11.9 Responses received from the High Courts, Governments and Judicial Officers’ Associations and individuals are not uniform. They are briefly summarised herein below:
HIGH COURTS :
11.10 High Courts of Patna, Jammu & Kashmir, Bombay, Orissa, Punjab & Haryana, Sikkim, Allahabad and Calcutta are in favour of allowing the officers in the Lower Judicial Service to compete for direct recruitment of District Judges.
11.11 But, High Courts of Andhra Pradesh, Guwahati, Delhi, Himachal Pradesh, Karnataka, Kerala, Gujarat, Madhya Pradesh, Rajasthan and Madras are against the proposal.
GOVERNMENTS :
11.12 Governments of Andhra Pradesh, Karnataka, Maharashtra, Tripura, Meghalaya and Gujarat want that the Officers of the Lower Judicial Service should be given an opportunity for direct recruitment of District Judges.
11.13 But, Kerala, Tamilnadu and Nagaland Governments are against any such move.
11.14 Sikkim Government wants that the posts of District Judges should be filled up only by promotion and not by direct recruitment.
11.15 In West Bengal, there is no direct recruitment for the present, but wants to reconsider the question.
SERVICE ASSOCIATIONS :
11.16 The Judicial Officers / Service Associations of Andhra Pradesh, Bihar, Delhi, Gujarat, Jammu & Kashmir, Kerala, Orissa, West Bengal, Kerala Magistrates (Judicial) Association, Haryana Civil Judges’ Association, Haryana State Judges’ Association, Judges of the City Civil and Sessions Court, Mumbai plead for an opportunity to the Lower Judicial Service for direct recruitment of District Judges.
11.17 Maharashtra State Judicial Service Association though initially opposed the proposal, subsequently sent revised view favouring the proposal.
11.18 But, Manipur Judicial Officers’ Association, Imphal, The Delhi Higher Judicial Service Association and the All India Association of Direct Recruits have strongly opposed the move for making Service judges eligible for direct recruitment.
11.19 The Judicial Officers / Services Associations of Tamil Nadu, Mizoram, Assam, Uttar Pradesh and Goa, have gone a step further. They are totally against the direct recruitment of District Judges.
11.20 But, the Uttar Pradesh Judicial Service Association in the alternative has indicated that the in-service Judicial Officers with seven years service be allowed for such direct recruitment.
INDIVIDUAL VIEWS :
11.21 Justice R.N. Mishra, Former Chief Justice of India, Mr. Justice D.R. Khanna, Former Judge, Delhi High Court, Mr. Justice Bopanna and Mr. Justice K. Ramachandriah, Former Judges, Karnataka High Court are in agreement with the suggestions of the Commission.
11.22 Mr. Justice R.S. Sarkaria, Former Judge of the Supreme Court and Mr. Justice D.M. Chandrashekhar, Rtd., Chief Justice of Karnataka do not want such opportunity for the Service Judges.
PROPOSED CONDITIONS :
11.23 Patna High Court is of the view that only those Subordinate Judicial Officers with 10 years of service could be allowed for direct recruitment, while Bombay High Court has stated that four years of service may be sufficient.
11.24 Gujarat High Court has stated that Officers in the Lower Judicial Service with seven years experience, after written test and oral interview could be recommended for direct recruitment.
11.25 Maharashtra Government requires seven years of minimum service. Under Secretary (Law), Government of Goa, Panaji suggests five years experience. The Meghalaya Government wants that the requisite service as qualification could be prescribed by Rules, with provision for relaxation in deserving cases.
11.26 The Gujarat Judicial Service Association, Haryana Civil Judges’ Association are for prescribing seven years of service, while, the Judges of the City Civil and Sessions Court, Mumbai are for six years of service.
11.27 The Bihar Judicial Service Association and West Bengal Judicial Officers Association have stated that experience in service plus the practice in the Bar together should not be less than seven years. Similar is the view expressed by the Maharashtra State Judicial Service Association.
11.28 The Karnataka State Judicial Officers’ Association wants only Civil Judges (Senior Division) with minimum experience of three years be allowed.
11.29 Kerala Magistrates (Judicial) Association wants every member of subordinate Judicial Service, on completion of two years service, be allowed to apply as against ten per cent of the posts reserved for direct appointment.
11.30 Delhi Judicial Service Association has stated that all posts reserved for direct recruitment from Bar should be left open for selection by a competitive examination both for Advocates of seven years and Judicial Officers of seven years service.
11.31 Justice R.N. Mishra, Former Chief Justice of India wants 10 years experience in service should be insisted upon, while Tripura Judicial Service Association considers that Officers of Grade II with minimum of seven years service may be allowed.
11.32 There are different reasons given by different High Courts and Associations, justifying the need to amend Article 233(2) of the Constitution. They are set out herein in laconic details:
PATNA HIGH COURT :
11.33 That an opportunity for Service judges to compete for the post of District Judges would give an impetus and improve their efficiency.
BOMBAY HIGH COURT :
11.34 If meritorious young blood is to be encouraged in the interest of the judicial system, then the avenues should be kept open. There is no harm to allow officers of lower judicial service to compete for direct recruitment to the cadre of District Judges. In the matter of such candidates, High Court will have an added benefit of assessing candidates on the basis of their work and confidential record.
PUNJAB & HARYANA HIGH COURT :
11.35 It would provide a chance to young and competent Judicial Officers to improve discipline in judicial service and make Officers work more efficiently, diligently and sincerely.
ALLAHABAD HIGH COURT :
11.36 That the experience at Bench is not inferior to that at Bar and it will be in tune with the provisions under Article 217(2) of the Constitution of India. It will further introduce fair and meritorious competition.
HARYANA CIVIL JUDGES’ ASSOCIATION :
11.37 It would enable judicial officers to work more efficiently, diligently and sincerely in the hope of getting quick promotion which is otherwise too slow in the judicial service.
ALL INDIA JUDGES’ ASSOCIATION :
11.38 Such an incentive will tend to keep such junior Judges on their toes to make them constantly improve their professional knowledge and experience. They would make more determined effort for keeping their professional image clean, hoping to get quick promotion through competition.
REASONS AGAINST -
HIGH COURT OF DELHI :
11.39 If Officers in the Lower Judicial Service are allowed to compete for direct recruitment of District Judges, there are possibilities of juniors overtaking their seniors which may lead to frustration in the seniors and it may not be conducive to judicial discipline.
HIGH COURT OF KARNATAKA :
11.40 It may lead to indiscipline, heart-burn, jealousy etc.
CONSTITUTIONAL AMENDMENT PROPOSED :
11.41 The following amendment to Article 233(2) of the Constitution has been proposed:
11.42 PUNJAB & HARYANA HIGH COURT :
Art. 233 :
(2) " Any person already in the judicial service of a State continuously for not less than seven years or any person who has been for not less than seven years an advocate or a pleader shall be eligible to be appointed a District Judge only if he is recommended by the High Court for appointment."
11.43 BOMBAY HIGH COURT :
Art. 233 :
(2) Deletion of word "only" from Article 233(2) of the Constitution
and addition of Sub-Clause (3) to Article 233 as under:
"(3) A person already working in the State Judicial Service in the cadre of Civil Judge (Junior Division) / Judicial Magistrate First Class; Civil Judge (Senior Division) / Chief Judicial Magistrate, with at least four years of service shall be eligible to be appointed as a District Judge."
11.44 CALCUTTA HIGH COURT :
Art. 233 :
(2) " A person shall only be eligible to be appointed as a District Judge if he has been for not less than seven years as an advocate or pleader or a member of the Subordinate Judicial Service and is recommended by the High Court for appointment."
11.45 ALLAHABAD HIGH COURT :
Art. 233 :
(2) "A person having total 7 years experience at Bar or Judicial Service or both shall be eligible to be appointed as District Judge and who is recommended by the High Court for appointment."
11.46 Bihar Judicial Service Association :
Article 233 (2) be amended by deleting the word " not already in service".
11.47 All India Judges’ Association :
Art. 233 :
"(2) Appointment of District Judges :
A person shall not be appointed a District Judge unless -
a) he has worked at least for 7 years in any State Judicial cadre or as a Law Officer, within the territory of India;
or
b) he has been an Advocate for 7 years;
c) his total tenure of work under clauses (a) & (b) has been for 7 years."
11.48 West Bengal Judicial Service Association :
Art. 233:
(2) "That a person already in the service or not of the union or the State shall only be eligible to be appointed as District Judge if he has been for not less than 7 years a Judicial Officer or an Advocate or a Pleader or both a Judicial Officer and an Advocate or Pleader on the recommendations of the National Judicial Service Commission."
11.49 Karnataka State Judicial Officers Association :
Art. 233 :
(2) "A person shall not be qualified for appointment as a District Judge unless he is in Judicial Service of the Union or State and has worked for not less than 3 years in the cadre of Civil Judge (Senior Division) and is not less than 40 years of age."
CONCLUSION :
11.50 We have given our anxious consideration to the views and comments expressed by the respondents to our Questions 8.3 and 8.4.
11.51 The majority of the High Courts and the Service Associations barring a couple of them are for giving an opportunity to the Service judges for direct recruitment of District Judges. Even, some of the Governments are in favour of such a move. The reasons given in support of the proposal are that it would promote efficiency, improve discipline in judicial service and make the officers to work more efficiently, diligently and sincerely.
11.52 We are highly impressed by the reasons given by the High Courts of Allahabad, Bombay, Punjab & Haryana and All India Judges’ Association. If meritorious young blood should be introduced in the mixed cadre, there is no reason why merited serving judges should be excluded from consideration for direct recruitment. In such selection the High Court will have an opportunity to assess the merit of serving judges as against the merits of the competent advocates. The Bombay High Court has rightly observed that the High Court in such selection will have an added advantage of assessing the service judges on the basis of their work and confidential records.
11.53 We agree that if an opportunity is afforded, it would make the Officers to work more efficiently, diligently and sincerely.
11.54 We do not understand why such an opportunity should create indiscipline, heart-burn and jealousy amongst the judicial officers as the Karnataka High Court has stated. We are equally unable to appreciate that it may lead to frustration amongst the Seniors who are not selected for direct recruitment as indicated by the Delhi High Court.
11.55 It may be noted that we are not recommending for accelerated promotion to Service judges. The accelerated promotion to a junior judge may lead to heart-burn and jealousy in the Service. Though we have formulated a question on that aspect and though some of the High Courts and Associations are in favour of introducing the system of accelerated promotion, we do not consider it desirable to have that system since it is likely to lead to bitterness and jealousy amongst the officers.
11.56 The Commission considers that if an opportunity for direct recruitment is afforded to inservice judges, it would, to a great extent, remove the frustration which is presently dogging them. Such an opportunity would add lustre to their career and enable them to outshine with their merit, hard work and sincerity.
11.57 The contention urged by the directly recruited District Judges that those who have got the promotional channel should be allowed to make a move only through that channel does not sound to reason. In All India Administrative Service, there is no bar for any person in any service for applying, subject to the age prescribed. It is a common experience that many of the successful IAS and IPS candidates initially belonged to one or the other service.
11.58 The Commission, therefore, considers that it is reasonable and also necessary to provide eligibility for service judges for direct recruitment of District Judges.
11.59 As seen earlier, some of the High Courts have suggested ten years of minimum service to earn eligibility for consideration for recruitment of District Judges.
11.60 Patna High Court has suggested 10 years of such service. Gujarat High Court requires seven years of experience. Punjab & Haryana High Court also wants minimum seven years of service.
11.61 The High Courts of Calcutta and Allahabad have suggested seven years of minimum experience but that seven years should be inclusive of the antecedent practice as advocate or pleader.
11.62 Bombay High Court has suggested minimum of four years judicial service; perhaps, against the background that the minimum practice at the Bar for entering the judicial service is three years and both put together would be seven years. But it may be noted, the Civil Judge (Junior Division) with four years service may not get adequate exposure and may not get any opportunity for trial of serious Criminal cases and Civil suits involving high stakes.
11.63 Apart from that, it is not correct to tag on the Bar practice with Judicial experience for direct recruitment of District Judges. Such Bar practice will count for initial entry into judicial service and it is not proper to give the benefit of it again for the same officer, while seeking appointment as District Judges.
11.64 In this context, reference may be made to Clause (2) of Article 217 of the Constitution. It reads as under:
"(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a Citizen of India and -
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession."
11.65 In computing the period of judicial office held by an officer his antecedent practice at the Bar is not to be counted. On the same line of reasoning, the antecedent Bar practice should be excluded for Judicial Officer to earn eligibility for direct recruitment of District Judges.
11.66 The Clause (2) of Article 233 provides that an Advocate or a Pleader must have minimum 7 years of practice to become eligible for appointment as District Judge. If we consider that a Judicial officer is to be made eligible for direct recruitment as District Judge, he must have also a minimum of 7 years of service. We cannot apply different yardstick. The same yardstick must be used for Advocates as well as inservice judges.
11.67 We accordingly suggest that Clause (2) of Article 233 be substituted with the following clause:
Art. 233
(3) A person shall be eligible to be appointed directly as a District Judge if he has been for not less than seven years an Advocate or held judicial office in the territory of India and is recommended by the High Court for appointment."
11.68 We propose to recommend age limit between 35 years and 45 years for Advocates to apply for direct recruitment. The same age limit shall also be prescribed to service judges for seeking direct recruitment as District Judges.
11.69 We request the Central Government, all High Courts, State Governments, Administration of Union Territories to take immediate action for amending Clause (2) of Article 233 as indicated by us.
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12. PRINCIPLES RELATING TO INTER-SE SENIORITY BETWEEN DIRECT RECRUITS AND PROMOTEES
IN THE CADRE OF DISTRICT JUDGES
12.1 In Service, the ranking of an Officer in the seniority list is determinative of his future career prospects. It is an index to attain one's reasonable aspirations and expectations. It should not, therefore, be kept fluctuating. The fluctuating ranking would seriously tell upon the nerves of the affected Officer. As far as possible, it must be kept certain and free from dispute.
12.2 But unfortunately, in most of the States, the inter-se ranking in the seniority list of direct recruits and promotees in the cadre of District Judges has always been the subject matter of controversy. It has been a vexed question for the High Courts and to the service personnel. It has, in fact, created bad blood with acrimonious debate between the two classes. It has affected even their performance in the administration of justice.
12.3 The Commission considers that in the interest of promoting efficiency in the administration and to bring about harmony amongst the Officers, it is necessary to identify the causes and suggest remedial measures. With this object in mind, the Commission invited the views and com ments from all concerned by specifically framing the following question in its Main Questionnaire:
"Question No.9: LITIGATION ON INTER-SE SENIORITY:
In some States / UTs, there is a lot of litigation between the direct recruits and the promotees on the question of inter-se seniority. Why such litigation has arisen? Please suggest the remedial measures to avoid such litigations."
12.4 The Commission has received a variety of comments and suggestions from the High Courts, State Governments, Judicial Officers' Associations and from some retired Judges. We may refer to them chronologically on State-wise basis with the prevailing Seniority Rule.
ANDHRA PRADESH :
12.5 The High Court informs that some times recruitment from the Bar is delayed for long period and the promotions are made from the judicial service on temporary basis, but continued for long periods. When direct recruitment takes place later, it creates problem in fixing inter-se seniority which leads to litigation between the two groups. Same view has been expressed by Andhra Pradesh Judicial Officers' Association.
12.6 The Relevant Seniority Rule 6 of the Andhra Pradesh Higher Judicial Service Special Rules, 1958 states:
"The seniority of a person appointed to category-II shall be determined with reference to the date from which he was continuously on duty in that Category."
NOTE : Category - I : District and Sessions Judges - Grade I
Category - II : District and Sessions Judges - Grade II
ASSAM & TRIPURA :
12.7 According to High Court, there are litigations on disputes regarding fixation of inter-se seniority between the two classes. But no details of such disputes have been furnished to the Commission.
12.8 The Relevant Seniority Rule 12 of the Assam Judicial Service Rules, 1967 as amended by the (Amendment) Rules, 1995 reads:
"12(1) The seniority, interse of the member of Grade I and II of the service shall be determined by the Governor in consultation with the High Court."
12.9 Similar Rule has been framed by Manipur, Meghalaya and Nagaland.
BIHAR :
12.10 The High Court states that the litigation takes place between direct recruits and promotees due to bulk appointments made from the Bar after a gap of several years. Such bulk recruitment from the Bar created imbalance in the cadre. The seniority is determined from the date of initial appointment. When a large number of appointments are made at one go from one source, such appointees become seniors as a big block marring future prospects of promotees.
12.11 Relevant Seniority Rule 16 of the Bihar Judicial Service Rules, 1951 reads:
x x x x x x x x x
"16(e) Seniority of direct recruits vis-à-vis promoted officers shall be determined with reference to the date from which they may have been allowed to officiate continuously in posts in the cadre of the service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility in or outside the cadre.
"Provided that when a direct recruit and a promoted officer are appointed on the same date, the promoted officer shall be senior to the direct recruit."
DELHI :
12.12 The High Court of Delhi states that there is litigation between direct recruits and the promotees pending in the Supreme Court and the matter is thus subjudice. By stating so, the High Court has conveniently avoided giving the causes of such disputes and suggesting remedial measures.
12.13 There are three Associations in Delhi Judicial Service:

I. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION (REGD.) DELHI:
12.14 This Association appears to have been formed recently. It represents Direct Recruits to the Higher Judicial Service of Delhi.
12.15 On Question No.9, the Association states inter-alia; that the litigation between direct recruits and the promotees has occurred on account of not filling up the posts of direct recruitment in time, while the promotions are made immediately as and when the vacancy occurs. Promotions are also made on an ad hoc basis / temporary basis against the posts earmarked for direct recruitment. The persons who are promoted want to retain their positions to which they have no right. To legitimatize such claims, they indulge in litigation to deny the rights of direct recruits.
12.16 This Association suggests among others, the following remedial measures:
(a) the seniority of officers should be decided immediately without any further delay. It is said that in Delhi the inter-se seniority has not been decided for the last more than 20 years which itself is a cause of dispute.
(b) the recruitment to a post falling vacant should be made as expeditiously as possible and not later than three months.
(c) Accountability should be fixed on a person / authority who has failed to act promptly in the above regard.
II. DELHI HIGHER JUDICIAL SERVICE ASSOCIATION:
12.17 This Association represents promotee Officers.
12.18 To the aforesaid Question No.9, the Association traces the history of certain litigations between the direct recruits and the promotees starting from the writ petition of O.P. Singla's vs. Union of India which was decided by the Supreme Court in 1984 and follow-up action taken by the High Court.
12.19 According to them, problems however continue. Many of the Officers get promotion long after 22 years of service. Recently some Officers got early promotion due to expansion of the cadre of Delhi Higher Judicial Service and not because of any improvement in service conditions. The expansion of the cadre has resulted in induction of more direct recruits of younger age. As long as this system of rota and quota is continued, the rota quota rule can never be worked out satisfactorily. The seniority determined by rotation of quota becomes "meaningless concept" for promotees. The interest of both sections can be protected by applying rota quota rule at the stage of grant of selection grade and elevation to the High Court and not at the stage of induction.
III. DELHI JUDICIAL SERVICE ASSOCIATION (REGD.):
12.20 This Association purports to represent all cadres in the Judicial Service.
12.21 Their response to the Question No.9 is as follows:
The litigation between direct recruits and the promotees in most of the States is as a result of incorrect observance of the service rules by the High Courts as well as by violating the terms of Rules. The Rules too are most harsh, oppressive and unjust as they are based on concepts of administrative or executive class of service, which yield undesirable results in judicial service.
12.22 They suggest that the date of actual appointment to higher post should govern the seniority of judges and giving of seniority from an anterior date when the post was available is extraneous and irrelevant consideration and is in bad faith. The Service Rule which permits and perpetuates such practice should not be followed and be amended. The evil effect of the present Rule is that it makes service judges of long years of experience junior to those judges who are appointed much later and who are much younger in age as well as experience. In fact, such persons who join later on from the Bar, have started their practice and gained experience only by practising before those very judges who are now rendered juniors to them.
12.23 In the alternative, this Association suggests that there should be equal and equitable distribution of all service benefits like selection grades, deputation and elevation to High Courts between direct recruits and promoted judges in the ratio of 1: 2, which will take the rule of rotation to its logical end.
12.24 Their complaint is that even though the post becomes available in the quota, yet the promotions are not given till the recruitment from the Bar is made and this has created great hardship to the promoted judges.
12.25 The Relevant Seniority Rule 8 of the Delhi Higher Judicial Service Rules, 1970 provides:
8(1) xxx xxx xxx
(2) The seniority of direct recruits vis-à-vis promotees shall be determined in the order of rotation of vacancies between the direct recruits and promotees based on the quotas of vacancies reserved for both categories by Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on."
GOA :
12.26 The Judiciary of the State is under the control of the High Court of Bombay.
12.27 The Bombay High Court states that to avoid inter-se seniority disputes (or litigation) between the promotees and the direct recruits, the Commission should formulate clear rules regarding recruitment and promotion.
12.28 The Government of Goa is of the view that there should be a roster between the promotees and direct recruits and first place should go to promotees.
12.29 The Goa Judicial Officers' Association suggests that a roster should be replaced and the date of appointment should be the criteria for fixing the seniority, be it by promotion or by direct recruitment to avoid unnecessary litigation regarding seniority.
GUJARAT :
12.30 High Court has referred to two writ petitions of District Judges pending in the High Court claiming parity of scales with the City Civil Court Judges and another filed by superseded Assistant Judge. But both of them are not concerned with the inter-se seniority of direct recruits and promotees. The City Civil and Sessions Judges and the Gujarat Judicial Service Association however, state that there are petitions pending in the High Court between the direct recruits and the promotees on the question of inter-se seniority. Probably, it has escaped the attention of the High Court.
12.31 The Gujarat Judicial Service Association which represents all Judicial Officers of the State is of the opinion that litigation on inter-se seniority arises because of non-fixation and / or incorrect fixation of seniority by the High Court. According to them, the seniority should start from the date of appointment and not from the date of vacancy arising.
12.32 The State Government suggests for framing of specific rules for fixing inter-se seniority between the direct recruits and the promotees. The Government also favours the fixation of seniority with reference to the date of appointment.
12.33 The Inter-se seniority between the direct recruits and Service promotees in the cadre of District Judges is determined on the basis of the report dated 4-12-1998 submitted by the Committee of Hon'ble Judges, which has been accepted at the Full Court meeting of the High Court held on 21-4-1999 which provides as follows:
"The practice followed is that the promotees and direct recruits get their seniority only when they are posted against the substantive posts of 50% reserved for each category. The service rendered by promotees posted in direct recruitment vacancies, or in posts in excess of the promotees quota will not get seniority."
HARYANA :
12.34 Punjab & Haryana High Court admits that there are litigations between the direct recruits and the promotees even though seniority between the two classes has been fixed according to Rule 12 of the Punjab Superior Judicial Service Rules of 1963.
12.35 The Haryana Civil Judges' Association states that the cause of the dispute between the direct recruits and the promotees lies in the manner of giving the seniority for direct recruits over the promotees. They indicate that promotees should be made senior to the direct recruits.
12.36 The Haryana State Judges' Association is another Association representing the Additional District & Sessions Judges of Haryana. This Association is of the opinion that there is a transparent bias against the promotees in the matter of fixation of seniority.
12.37 The relevant extract of the Rule 12 of the Punjab Superior Judicial Service Rules 1963 provides:
" The seniority inter-se of the members of the service shall be determined by the length of continuous service on a post in the service irrespective of the date of confirmation:
Provided that in the case of two members appointed on the same date, their seniority shall be determined as follows:-
i) In the case of direct recruits, the member older in age shall be senior to the younger;
ii) A member recruited by direct appointment shall be senior to a member recruited otherwise;
iii) In the case of members appointed by promotion, seniority shall be determined according to the seniority of such members in the appointments from which they were promoted."
HIMACHAL PRADESH :
12.38 The High Court and State Government say that there is not much litigation between the direct recruits and the promotees on the question of inter-se seniority.
12.39 Shri Ravinder Parkash, Senior Sub-Judge-cum-CJM, Kulu, Himachal Pradesh has set out some reasons for the inter-se seniority disputes. He says the Rules are faulty. The direct recruitment is not made at the appropriate time when the post falls vacant. The principles of rota and quota are causing great hardship. The direct recruits are some times appointed 3-4 years after the ad hoc promotions but they are given seniority over the promotees on the basis of rota quota rule. This practice leaves behind heart burn amongst the Judicial Officers who after rendering service of 15 to 20 hears are made junior to persons who are appointed before 3-4 years. The best method to avoid such litigation, he says, is that the seniority should be fixed only from the date the Officer joining duty.
12.40 The relevant Rule 12 of Himachal Pradesh Higher Judicial Service Rules, 1973 provides:
"The seniority, inter-se, of the substantive members of the service, whether direct recruits or promoted officers, shall be determined with reference to the respective dates of their confirmation.
Provided that the seniority, inter-se, of substantive members of the service having the same date of confirmation shall be determined as follows:-
(i) in the case of direct recruits, the older in age shall be senior to the younger;
(ii) in the case of promoted officers, in accordance with the seniority in the Himachal Pradesh Judicial Service as it stood immediately before their confirmation;
(iii) in the case of promoted officers and direct recruits, the older in age shall be senior to the younger."
JAMMU & KASHMIR :
12.41 The High Court is of the view that much litigation as to inter-se seniority between the direct recruits and the promotees could be avoided if a specific and comprehensive rule is made.
12.42 J & K Judicial Service Association also shares this view.
12.43 The relevant extract of the Seniority Rule 17 of Jammu & Kashmir Higher Judicial Service Rules, 1983 reads:
"17(2) As between direct recruits and promotees, the seniority shall be determined with reference to the date of their appointment in the cadre; provided where the promotee and direct recruit are appointed on the same date, the promotee shall rank senior to the direct recruit."
KARNATAKA :
12.44 The High Court appears to be more frank in this regard. It is stated that litigation has arisen in view of delay in filling up vacancies arising out of the quota reserved for direct recruits. The High Court suggests that litigation between direct recruits and the promotees on the question of inter-se seniority can be avoided by fixing and counting the seniority from the date of entry into the cadre, i.e. the date of taking charge in the case of promotees and the date of joining duty in the case of direct recruits.
12.45 Karnataka State Judicial officers' Association states that the problem of inter-se seniority has arisen on account of recruiting District Judges who are relatively young. Recruitment is made some times in large numbers at a time thereby blocking the seniority of promotees. According to them, this problem may be remedied by restricting the number of appointments by direct recruitment.
12.46 The State Government identifies the reasons for such litigation. It is due to not adhering to the quota between the direct recruits and the promotees and the process of direct recruitment taking a long time and often taking years. Another reason given by the State Government is that normally promotions are made in excess of the quota and when the excess promotees are pushed down upon direct recruitment, it leads to litigation.
12.47 Justice D.M. Chandrasekhar, Former Chief Justice, High Court of Karnataka and Justice P.P. Bopanna (Rtd.) are for determining the inter-se seniority from the respective dates of appointments to the cadre, whether by promotion or by direct recruitment.
12.48 The relevant extract of the Karnataka Government Servants' (Seniority) Rules, 1957 states:
"Rule 2. Subject to the provisions hereafter contained, the seniority of a person in a particular cadre of service or class of post shall be determined as follows:
(a) Officers appointed substantively in clear vacancies shall be senior to all persons appointed on officiating or any other basis in the same cadre of service or class of post.

(b) The seniority inter-se of Officers who are confirmed shall be determined according to dates of confirmation, but where the date of confirmation of any two officers is the same, their relative seniority will be determined by their seniority inter-se while officiating in the same post and if not, by their seniority inter-se in the lower grade.
(c) Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same, the seniority inter-se in the lower grade shall prevail.
xxx xxx xxx
3. Where officers are recruited to any service or a class of post by promotion and by direct recruitment, the officers directly recruited will take precedence over the promoted officers in case where the date of appointment is the same."
KERALA :
12.49 The High Court of Kerala has not given their comments on Question No.9. The State Government is no better. The State Government is not aware of any litigation regarding the inter-se seniority between the direct recruits and promotees.
12.50 There are two Associations: (1) Kerala Judicial Officers' Association (Registered) and (ii) Kerala Magistrates (Judicial) Association. The reason given by the former is not relevant for our purpose. The latter states that the seniority of direct recruits and of promotees should be determined with reference to the respective dates of appointments of each of such candidates.
12.51 The Rule regarding Seniority provides:
"6. Seniority (1) The seniority of a person appointed either to category (1) or category (2) shall, unless he has been reduced to a lower rank as punishment, be determined with reference to the date of the order of his first appointment to the said category:
Provided that the seniority of a person appointed to category (2) prior to 1st January 1979 shall be determined with reference to the date from which he was appointed to the category otherwise than as a temporary basis, without being subsequently reverted from the post.
(2) If two or more persons are appointed by the very same order either to category (1) or to category (2), their inter-se seniority shall be determined by the serial order in which their names appear in the appointment order."
(Note: Category (1) - Selection Grade District and Sessions
Judge.
Category (2) - District and Sessions Judges (including
Addl.District and Sessions Judge).
MADHYA PRADESH :
12.52 The High Court of Madhya Pradesh appears to have misunderstood the Question No.9. By way of answer to that question, it has simply asked the Commission to refer to Rule 11 of the Madhya Pradesh Uchchtar Nyayik Seva (Bharti Tatha Seva Sharten) Niyam, 1994.
12.53 Madhya Pradesh Judges' Association has also asked the Commission to refer to the said Rule 11. We think one has copied the answers of another.


12.54 According to the Madhya Pradesh Judicial Officers' Association, the root cause for the litigation between direct recruits and the promotees on the question of inter-se seniority is due to stagnation, frustration and nepotism on the part of the Recruiting authority.
12.55 The State Government has, however, stated that there are clear rules regarding the fixation of inter-se seniority list and, therefore, the problem is not felt in their State.
12.56 Mr. P.V. Namjoshi, Director, Judicial Officers' Training Institute, Jabalpur, appears to be the only person in Madhya Pradesh who has applied his mind carefully to this thorny problem. In his Memorandum to the Commission, he states:
"In Civil Service, whenever a Deputy Collector is promoted as an Officer of the Indian Administrative Service, his inter-se seniority is determined on the basis of total length of service rendered by him and not from the date of his promotion. For example, if he happens to be in the State Civil Service for a continuous period of 21 years, he would get a weightage of seven years over a member directly recruited to the cadre. The same formula should be made applicable mutatis mutandis to the Members of the Higher Judicial Service."
12.57 The relevant extract of the Service Rule regarding Seniority reads:
"11. Seniority: (1) The seniority of a person appointed to a post in Categories (a), (b), (c) and (d) of Rule 3 (1) shall, unless he has been reduced in rank on account of punishment, be determined in accordance with:
(a) the date of continuous officiation in the service in case of officers promoted to category (a).
(b) the date of order of appointment in the case of direct recruits to post in category (a) (i) and
(c) the date of order of promotion to categories (b), (c) and (d) respectively or such date as may be specified in this regard by the High Court;
Provided that where the date of continuous officiation in the case of a member promoted to a post in category (a) (i) and the date of joining the service in the case of direct recruit to the post in the same category, be the same, the promoted officer shall be treated as senior;
Provided, however, that seniority inter-se among the persons promoted by an order of the same date or among direct recruits appointed by an order of the same date shall follow the order in which their names have been recommended by the High Court."

Note:
13.1 INTRODUCTION
13.1.1 After a long period of relative neglect and low priority, judicial education holds out the promise of organized action in the coming years at the hands of the authorities in India. The decision of the First National Judicial Pay Commission to give the subject the attention it deserves while recommending the restructuring of the status and service conditions of what the Constitution of India calls the "Subordinate Courts" (Chapter VI, Articles 233-237) is a welcome development not only for the institution but also for the litigant public. The immediate provocation for the initiative came from a 1992 judgment of the Supreme Court in All India Judges' Association V. Union of India & Others (AIR 1992 SC 165) reiterated in another judgment on a Review Petition in 1993 (AIR 1993 SC 2493). Chief Justice Ranganatha Misra who wrote the judgment on behalf of himself, Justices A.M. Ahmadi and P.B. Sawant said :
"One of the claims advanced before us was for provision of inservice training for judicial officers. This we consider as a must ... We are of the view that inservice institutes are indispensable for the upkeep of the efficiency of judicial service. We direct that an All India Institute of Inservice Training for higher officers of the judiciary including the District Judges and a State level institute for training of the other members of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate not later than December 31, 1992. This has to be organized by respective High Courts" (emphasis added).
It is refreshing to note that claim for in-service training came as a demand from the judicial officers themselves in their petition before the Supreme Court. They must have experienced how the lack of such training affected their capacity to perform better in their judicial and administrative functions.
13.1.2 The Supreme Court did consider the item as a priority issue and mandated the setting up of two sets of judicial training institutions - one for higher judicial officers including the District Judges at the all India level and another for State/Union Territory at the State or regional levels - by the end of 1992 and imposed the organizational responsibility on the High Courts. Six years later, the scheme has not taken off from the drawing board stage. Hopefully, the High Courts which have been given the responsibility will now act on the basis of the Report of the National Judicial Pay Commission and ensure that the institutes are in place at least in beginning of the next millenium which incidentally is just two years away.
Law Commission Recommendations :
13.1.3 The need for raising the competency of judicial officers for better performance of the judicial system was highlighted by several reports of the Law Commission of India beginning with the Fourteenth Report (Reform of Judicial Administration, Volume I, Chaper-9, Subordinate Judiciary) in 1958. The report said :
"The problem of efficient judicial administration, whether at the level of the superior courts or the subordinate courts, is largely the problem of finding capable and competent judges and judicial officers. Delays in the disposal of cases and the accumulation of arrears are in a great measure due to the inability of the judicial officers to arrange their work methodically and to appreciate and apply the provisions of the Procedural Codes ... However, well framed the substantive law and carefully designed the procedural law, the proper application and working of these laws lies largely in the hands of the officers presiding over the courts. Even if these laws were perfect, we would need adequately trained and capable judicial officers to apply and administer them. Without such personnel, administration of justice can never be satisfactory". (p.161).
13.1.4 Reiterating the increasing importance of training to judicial officers, the Setalvad Commission report added : "... Not only has the volume and variety of the work increased but the pace at which a munsiff has to perform his duties has quickened. Unless a young officer is given the proper training, he is likely to acquire by reason of his inexperience, un-businesslike habits which he may find it difficult to shed later on and which may prevent him from becoming an efficient judge. A certain amount of training in the administrative work of a court is also essential to a fresh entrant into the service from the Bar, if he is not to be at the mercy of his office clerks" (p.178).
13.1.5 The Fifty-fourth Report of the Law Commission in 1973 further emphasized the subject and recommended the immediate setting up of a National Academy for Judicial Training. It said :
"Even at the cost of repetition, we wish to emphasize that the success of any system, and particularly the judicial system depends on the men who work the system...Successful completion of the training should be a condition precedent to confirmation of appointment in the judiciary".
13.1.6 Keeping in mind the changed role of judges in the independent Republic of India, the Gajendragadkar Commission added : "The subjects to be included should be such as to deal with the relationship of law to other social sciences, including, in particular, economics and sociology. The emphasis should not be on technical law or procedure, but on law as a part of an inter-disciplinary study and on the application of the law to the facts of a particular case....A subject of importance is the effect of social change on legal institutions..".
13.1.7 It is in the light of the jurisprudential view of the judicial role that judicial training should be organized. "The law is predominantly an instrument of social engineering in which conflicting pulls of political philosophy, economic interests and ethical values struggle for recognition. This struggle has to be viewed against the background of history, tradition and development of legal techniques. A working knowledge of those disciplines is therefore essential". (p. 332-333, 54th Report).
13.1.8 The One Hundred and Seventeenth Report of the Law Commission is devoted entirely to the subject of training of judicial officers (November 1986). The report found, quoting approvingly the comment on the American judicial system by the then Chief Justice of that country, "... In the final third of the century, we are still trying to operate courts with fundamentally the same basic methods, the same procedures and the same machinery which Roscoe Pound found were not good enough" even at the turn of the century a hundred years ago ! As Lord Devlin said of the British Justice System, "If our business methods were as antiquated as our legal system, we would have become a bankrupt nation long back". The Law Commission Report therefore concluded that the "updating of the knowledge and skills can hardly be left to the voluntary effort of individual judges.." It is conceded that training can significantly upgrade the capability of everyone called upon to perform a duty. It is all the more so in the case of judicial officers, because sociology of law is acquiring new and added significance in the development of the society". (p. 2 of 117th Report).
13.1.9 The importance and urgency of pre-service and in-service training for judicial officers have again been reiterated in the 114th Report on Gram Nyayalaya (participatory justice at the grassroot level) and the 116th Report in which the Commission recommended the scheme for an all-India Judicial Service.
13.1.10 It is thus beyond doubt that there is an imperative need for organized programme of judicial education and training not only at the time of selection and appointment, but on a continuing basis during service. It is also clear that the primary reason for judicial delays, repeated appeals and legal uncertainties, inter alia, can be traced to the lack of required competence in terms of updated knowledge and skills on the part of judicial officers at several levels of the system. In short, there is no substitute to organized and appropriate training on a continuing basis which requires priority attention in the judicial reform agenda. The occasion of the introduction of all-India Judicial Service should provide the opportunity for a meaningful, nation-wide programme of judicial education to prepare the system to respond to the challenges of the next millenium with competence and confidence.

























13.2 THE FUNCTION OF THE JUDGE
13.2.1 The nature and scope of judicial education depends upon the function of the judge in a given society. Broadly speaking, the function of every judge, trial or appellate, is to decide the cases brought before him according to law and in a manner accepted by society as just, fair and reasonable. The credibility and legitimacy of judicial decisions depend not only on its merit and soundness in law, but also on public perception of impartiality and objectivity of the procedure adopted by the judge. This is a delicate task which judges have to internalise when they assume the role of judging.
Organizing a fair trial and determination of facts :
13.2.2 This report looks at only the functions of a trial or an appellate judge in the "Subordinate Courts". The most important of his function is to conduct the proceedings in a fair, orderly and dignified manner. Finding the truth of contested issues of fact is the first concern of a trial judge. Based on facts ascertained, the judge is to apply the law and give his decision on guilt, liability etc. For ensuring "fairness" in truth ascertainment and minimising subjectivity in the process, procedural law gives rights and privileges to litigants, witnesses and officers of court. It is the function of the judge to give maximum protection to these rights and privileges of parties so that justice is not only done but appears to have been done. This is a function which demands a variety of skills on the part of the judge besides knowledge of law. A judge's personality and values influence his decisions and the atmosphere he creates in the courtroom. His body language and tone of voice, his reactions to witnesses, his interaction with others in the courtroom, his manner of ruling on objections, his treatment of advocates all affect public perception of the fairness of the trial.

With the introduction of new technologies and changes in law, the judge is confronted with continuing challenges of court management, litigational efficiency and judicial balance in the conduct of trial of civil and criminal cases.
13.2.3 The judges at the primary level also have the responsibility to critically evaluate pleadings, settle issues, handle interlocutory applications and manage introduction of evidence by parties to the dispute. In the process, he may issue commissions and invoke methods of alternate resolution of the disputes before him. The judge has to rule on evidentiary contests on admissibility, relevancy and probative value. He must be able to appreciate evidence, assess the credibility of witnesses, and determine facts on the basis of preponderance of probabilities. A judge is expected to be an expert in all areas of the law, though as a lawyer he might have specialised in one or two branches of law only. All these demand knowledges and skills of such range and variety which perhaps no other profession requires from a practitioner. At the same time the facilities and support services available to him are so limited and archaic which make his task all the more difficult and challenging.
Writing Judgments :
12.2.4 On ascertaining facts and after receiving arguments on behalf of parties, the judge has to perform the most important function of delivering judgment on which his credibility and acceptability are determined by the legal community, the parties and the society at large. Judicial reasoning is both an art and a science to be cultivated by every judge by study, reflection and hard work. His competence in language and communication is critical for this task. Complex factual situations have to be analyzed and important legal principles have to be explained to avoid possible conclusions contrary to his own. The judge must be able to put it in such a way that even if the matter goes on appeal, the appellate judge should find it persuasive enough to go by the finding of the trial judge.
Sentencing and Calculation of Damages :
13.2.5 In criminal proceedings the judge has to perform another important function of awarding an appropriate sentence to the guilty. With better understanding of the varied goals of punishments and the nature of human behaviour, the sentencing function has assumed a critical role in criminal justice administration. Similarly the calculation of money damages in a civil court is not that easy as generally believed.
Human Rights Observance :
13.2.6 The emergence of human rights in its varied dimensions in substantive and procedural laws makes varying demands from the trial judge particularly in criminal trials, environmental adjudication, family dispute settlements, juvenile justice and labour relations litigation. The trial judge has to have an abiding interest and wholesome understanding of human rights jurisprudence as developed by international instruments and Constitutional law.
Judge as a Manager of Men and Events :
13.2.7 Finally, the judge has to be an able administrator to be able to move things in a culture in which inaction and delay have been entrenched habits in judicial administration. He has to manage the docket and the ministerial staff intelligently and imaginatively through continuing interaction, motivation, supervision and leadership. He has to keep the bar in good humour with a message of firmness and impartiality. He has to strive for excellence in his job and earn the reputation of being a "good judge".
Functional Skills Needed :
2.8 The judicial function thus is a challenge to everyone who occupies that office. To be able to respond to such a noble assignment of dispensing justice efficiently and impartially, a trial judge, inter alia, has to improve his knowledge and skills on :
(a) the concept and concerns of a fair trial and its operational parameters.
(b) the concept of a fair judge, an activist judge, a firm judge.
(c) the methods of fact-finding in judicial proceedings.
(d) the art of judgment writing.
(e) the science of sentence determination and damages calculation.
(f) management of court proceedings in a fair, dignified, orderly manner.
(g) management of case flow, information, accounting records, court staff, media, etc.
(h) updating knowledge of human rights jurisprudence and emerging areas of litigation brought about by technological changes.
(i) improving professional skills and ethics.
(j) changing social order and democratic governance under rule of law.
2.9 Each one of these items calls for a fund of related knowledges which require inputs from social and forensic sciences, management science, information technology etc. This cannot be had by individual initiatives alone from amidst the daily routine of a judge. Hence the need for scientifically organized and constantly improved system evaluation and training on a continuing basis.




13.3 FUTURE ROLE OF JUDGE AND TRAINING NEEDS
13.3.1 The role of a judge is by and large determined by the nature and variety of his functions. The conventional functions are assuming new dimensions with the expansion and diversification of judicial assignments and changes in the expectations of society. Technological changes do also impact on judicial functions. Thus, on the eve of the third millenium, the role of a judge in the secular, socialist, democratic, republic of India in which one-sixth of the human race inhabit is likely to assume changes of far-reaching significance and complexity not totally comprehensible at present. The perception of justice itself is changing in contemporary times. There are a number of myths and mysticisms around the office of judgeship, perhaps deliberately developed over the centuries, which are increasingly being questioned on grounds of relevance, utility and legal benefits. Privileges and immunities of judges are being re-examined in terms of relationship to independence and accountability.
13.3.2 Reflecting on the role of the judge, The Hon. Judge Sandra E. Oxner, President of the Commonwealth Magistrates' and Judges' Association wrote :
"The all powerful and righteous judge became exposed by the spotlight of contemporary media scrutiny as a human being subject to all human frailties.
"The general public disillusionment with official office holders coupled with the lingering respect for the judiciary from a time when the judge and her behaviour were protected from public scrutiny combine to create an expectation of a very high standard of judicial conduct in and out of court. While the expectation is not misplaced, the burden it places on a judge is such that a support system of advice and collegiality must be in place to allow the judge to live up to these expectations and not inadvertently bring the administration of justice into disrepute. The establishment of ethical standards of conduct and collegial discussions of specific problems will assist the judge in ordering her affairs and conduct in such a way as to maintain the public trust and better withstand the searing light of media scrutiny...
"It is important that lines of communication are open between the media and the judiciary.. This analysis of the role of a judge points up the need for judicial support through education in the following various fields; the principle and practice of the independence of the judiciary; accountability to the public; judicial ethics and conduct; sensitivity training in contemporary social issues; gender, aboriginal, ethnic, and other disadvantaged groups sensitivity training; and Media-Bench relations". (Report of the Tenth Commonwealth Magistrates' and Judges' Conference, Victoria Falls, Zimbabwe, August 1994, p.137).
Socialisation of a New Judge :
13.3.3 The expectations, perceptions and dilemmas of the judge's role contribute to the individual's transition from lawyer to judge. This transition takes months or years to complete. It is a major change in which the new judge has to keep distance from lawyer friends developed over years of law practice and a network of judicial colleagues has to be painstakingly evolved. The new role substantially changes the perspective from which one views the trial, the law, the profession, justice in society and dynamics of rule of law.
13.3.4 "The Judge's Book" a valuable handbook prepared by the National Judicial College and the American Bar Association and widely circulated among judges in U.S.A. and outside, quotes a study of the socialisation process to describe the transition in the role of a new judge. This study finds that "there are four steps to the socialisation of a judge and that moving through all the steps takes at least fifteen years of judicial service. The first of these steps, Professional Socialisation, occurs in the period before a person becomes a judge, and includes law school, legal practice experiences, and other career-related experiences. The second step, Initiation and Resolution, includes the first five years on the bench. During this period the judge undergoes an initial adjustment and self-concept change in trying to define his or her role as a judge. Towards the end of this stage there is a resolution of role conflicts, and a transition to the decision to remain on the bench. The third step, Establishment, covers years six through fifteen on the bench. During this stage the role of the judge changes from that of altruist and legalist to guardian of the law, as another role definition and resolution of conflict occurs within the judge. The final step, Commitment, begins when the judge has served on the bench 15 or more years. During this final stage, there is an increased commitment to the bench, marked by a satisfaction with judicial life. The new judge would do well to consider these findings and to be thereby forewarned of what lies ahead". (Alpert, Atkins and Ziller, "Becoming a Judge : The Transition from Advocate to Arbiter" 62 Judicature 325 (1979) quoted in The Judge's Book, Second Edition, The National Judicial College, Nevada, Page 9).
Qualities of a Judge :
13.3.5 The essential qualities of a good judge are listed in the Judge's Book as follows:
(a) Graciousness : A trial judge should cultivate the ability to be gracious and to listen attentively to the parties and their cases. A good hearing is soothing to the soul. So the judge should make it a point to show interest in every case, no matter how unimportant it seems to be.
(b) Moral Courage : A judge should not expect to be popular. He should develop the courage to do justice whatever the consequences.
(c) Reputation for Fairness : This is something one can develop only by actually being fair and giving such an impression to the people concerned. How a judge conducts his or her private life as well as the judge's manner in the courtroom can give the appearance of unfairness even in a judge who is, in fact, fair.
(d) Mercy : A good judge will have the mercy to apply when appropriate.
(e) Patience : It may seem to be a waste of time to listen to extensive arguments on a point on which the judge has made up his or her mind. But judges owe it to the lawyers to listen to their arguments. One object of the adversary system is to afford an opportunity to correct premature judgments which all human minds are prone to form ... There is no more sorry spectacle than a trial judge throwing his weight around. A judge should be dignified and firm but should not be mean.
The confident and enlightened judge frames commands in the form of requests, makes them in a pleasant way, and is respected. The insecure judge shouts orders, which are obeyed but without respect.
(f) Ability to Communicate : A trial judge is a teacher who must learn to transform legal phrases into plain English that can be understood by lay people without jeopardising its legal soundness.
(g) Decisiveness : A judge who does not possess decisiveness should acquire it. Thoughtful consideration is essential, but indecisiveness is inconsistent with judicial responsibility. And having decided, the judge should announce the decision with a show of confidence that it is right.
(h) Honesty and Integrity : These are qualities essential for every gentleman and more so for a person occupying the office of judge. In judges these qualities should be transparent and unquestionable.
13.3.6 The above list is not exhaustive of the attributes of a good trial judge. They illustrate the complex role of a judge which requires mental and behavioural abilities capable of influencing the attitudes of a variety of actors in the court room. In a plural society with institutionalised social inequalities based on gender, religion, language, race and caste, the role of the judge becomes all the more difficult and challenging. This is where the Constitutional philosophy should invariably inform and illuminate the thought and action of every judge particularly operating at the grassroot level.
Judge of the Future
13.3.7 The Judge's Book published by the American National Judicial College contains a chapter on "The Judge of the Future" which succinctly projects the emerging features which will be reflected in the judges of the future. A few excerpts from Chapter 21 of the book are given below :
"Although speculations about the judge of the future bring visions of robotic truth-assessing machines, law dispensing computers, and chemical-test-determined dispositions, human beings, rather than mechanical marvels, will continue to exercise the fine art of judgment for any foreseeable future".
13.3.8 The most visible recent change in the judiciary has been the growing diversity of judges themselves. A look at the law schools of today indicate the demographics of the bench of tomorrow. A growing number of women will occupy judicial offices particularly in trial courts. So also the Dalits, more Backward Classes and minorities who have had historically no representation in the judiciary. Reflecting the make up of the legal profession, the bench will become younger, demographically diverse and less experienced which will make judicial education and training critical factors in future.
13.3.9 Technology is changing the role of the judge. Innovations are allowing traditional tasks to be done more efficiently. Where once the judge heard all aspects of a case, new procedures such as Alternate Dispute Resolution (and Lok Adalats) are helping judges to deal with increased caseloads. Computers, adaptations of sound recording devices and videotaping facilities will quicken the process of trial, management of dockets and production of transcripts, orders and judgments. Many of these technologies suggest the prospects of limiting a judge's personal staff while increasing the number of technical specialists in the court. The personal computer will enormously increase the research and communication capabilities of the judge.
The level of scholarship of future judges is bound to increase with easy access to internet and related facilities. The judge of the future will have a national and perhaps an international perspective.














13.4 SUBORDINATE JUDICIARY : A PROFILE AND
A PROGNOSIS
13.4.1 Prior to the Constitution of India, the position of the subordinate judiciary like appointments, posting and promotion were not exclusively in the hands of the High Courts.
At the Conference of the Judges of the Federal Court and of the Chief Justices of the Provincial High Courts, the position of the subordinate judiciary in relation to the provincial Executive was considered and it was regarded as essential that the members of that service should not be exposed to the extraneous influence of the members of the party in power. It was recommended that provision be made placing exclusively in the hands of the High Courts the power of appointment and dismissal, posting, promotion and grant of leave in respect of the entire subordinate judiciary including the District Judges1.
The above views have been given effect in the recommendations made by the Drafting Committee of the Constitution with certain modifications, and ultimately, a new chapter as Chapter VI of Part VI under the title "Subordinate Courts" has been incorporated in the Constitution.
13.4.2 This Chapter VI of Part VI contains a group of Articles 233 to 237.
Article 233 which is the first Article in this Chapter provides for appointment of District Judges.
The expression "District Judges" has been defined under Article 236(a).
Article 234 provides for recruitment of persons other than District Judges.

1. The framing of India's Constitution by B. Shiva Rao, Select Documents, Vol. IV, p. 186.
Article 235 provides that the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State shall be vested in the High Court.
Under Article 236(b), the expression "Judicial Service" has been defined to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
13.4.3 Judicial service postulates the hierarchy of Courts with the District Judge as the head and other judicial officers under him discharging only judicial functions2.
13.4.4 Judicial service is a career service with pyramidic structure of Courts. At the lowest rung, there are judges called Civil Judges (Junior Division). Next higher grade is Civil Judges (Senior Division) and still higher is the cadre of Additional Judge and District Judges. Likewise, on the criminal side, there are Magistrates at the lowest level; Chief Judicial Magistrates/Chief Metropolitan Magistrates/Assistant Sessions Judges at the middle cadre and above them Sessions Judges/Additional Sessions Judges.
Over and above all these, is the High Court which is the highest Court in the State, set up under Article 214 of the Constitution.
13.4.5 We have adopted the adversary system which is commonly followed by other Commonwealth countries. But it is unfortunate that we have not made any improvements either in the structure of Courts or training the judicial officers to meet the growing challenges in the administration of justice. We have no doubt made considerable progress in science and technology but the machinery of justice remains with antiquated tools and outmoded laws and procedures.


2. State of Maharashtra v. Labour Law Practitioners' Association, AIR 1998 SC 1233.
13.4.6 Adverting about the grave conditions prevailing in the subordinate Courts, the 14th Report of the Law Commission observed3:
"Under the Constitution, administration of justice and the constitution and the organisation of Courts other than the High Courts are the responsibility of the State administration. The facts revealed indicate on the one hand a gross neglect by the State administration of their duty in establishing the necessary number of Courts and on the other, a complete failure on the part of the State to carry out its obligations to provide trained and proper judicial personnel for presiding over the Courts. The States in question cannot even urge financial stringency as an excuse for, the figures reveal that these States have been making substantial gains out of the revenue earned by them by way of Court fees. It is a matter for serious consideration whether in order to prevent what appears to be virtually a breakdown in the system of judicial administration the Central Government should not, by an amendment of the Constitution, be given a greater measure of control over some aspects of judicial administration in the States".
When these observations were made, the field of Legislation on administration of justice and organisation of all Courts, except the Supreme Court and High Courts, were exclusively in the State List under Entry 3, List II of the Seventh Schedule. That was indeed the reason why the Law Commission made the aforesaid observation by recommending an amendment to the Constitution to enable the Central Government to take greater measure of control over some aspects of judicial administration in the States.

3. P. 158, Vol. I of Fourteenth Report on Reform of Judicial Administration, 1958.
13.4.7 But the position today is different. By 42nd Amendment Act, 1976, which came into force on January 3, 1977, a part of the Entry 3 of List II in Seventh Schedule was omitted and by Clause (c) of Section 57 of the 42nd Amendment, Entry 11-A was inserted into List III - Concurrent List.
Entry 11-A so inserted in List III reads thus :
"11A. Administration of justice; constitution and organisation of all courts, except the Supreme Court and High Courts".
This transposition of entry confers equal powers on the Central Government to take adequate measure of control to make the much needed improvement in the administration of justice, constitution and organisation of all Courts. But the Central Government has done little in this regard in spite of the power being given to them.
13.4.8 It may be noted that like in the United States, we do not have dual system of judiciary - Federal Judiciary and State Judiciary. The Federal Judiciary deals with a the cases arising under Federal Laws while the State Judiciary deals with the State Laws. We have adopted single judicial system as State Subordinate Judiciary. The State Subordinate Judiciary is the only forum in which all cases arising under the Central and State enactments are examined and tried. In fact, there are more than hundred Central Legislations in addition to the Indian Penal Code with which the State Subordinate Courts are involved in enforcing. That being the position, we fail to see why Central Government should not come forward to share the responsibility of administration of justice in every State.
13.4.9 It is estimated that the country has in its Twenty Five States and Seven Union Territories a cadre strength of over 12,000 judges in its Subordinate Judiciary. The required strength according to Law Commission estimates is said to be twice that number immediately and four times that number in the next five to ten years. On an average, about 1,500 to 2,000 judicial officers are to be added to the strength of the subordinate judiciary. A statement showing the cadre strength of the judges in the subordinate courts of different States and Union Territories as on 1997 is given below :









STATEMENT SHOWING THE CADRE STRENGTH OF JUDGES
IN THE SUBORDINATE COURTS

Sl.No.
State
Cadre I
Dist. Judges etc.
Cadre II
Civil Judges Sr.
Cadre II
Civil Judges Jr.
1.
Andhra Pradesh
117
122
433
2.
Assam
29
46
146
3.
Bihar
276
265
1042
4.
Goa
11
14
20
5.
Gujarat
67
264
290
6.
Haryana
63
---- 158*----
7.
Himachal Pradesh
28
12
58
8.
Jammu & Kashmir
33
42
51
9.
Karnataka
135
167
330
10.
Kerala
101
81
229
11.
Madhya Pradesh
277
229
444
12.
Maharashtra
270
254
717
13.
Manipur
4
6
11
14.
Meghalaya
2
3
3
15.
Mizoram
6
11
3
16.
Nagaland
9
8
5
17.
Orissa
62
113
261
18.
Punjab
60
---- 213* ----
19.
Rajasthan
248
144
315
20.
Sikkim
5
2
6
21.
Tamil Nadu
85
96
399
22.
Tripura
18
10
45
23.
Uttar Pradesh
650
519
660
24.
West Bengal
234
166
337
25.
Delhi
134
---- 218* ----
26.
Lakshadweep
1
-
2
27.
Pondicherry
4
5
10
28.
Andaman Nicobar
1
1
3
29.
Chandigarh
3
3
6
30.
Dadra & Nagar Haveli
1
1
-
31.
Daman & Diu
1
1
-
32.
Arunachal Pradesh
-
-
-
TOTAL :
2935
2585 589*
5856

Note : * break up not available.
13.4.10 According to a recent study, India has a little over 10 judges per million people whereas it is 243 in China and 150 and more in some of the developed countries of the West. The number of cases per million people is fairly high (1500) and the expenditure incurred on the judiciary by the Government is strikingly low (0.19 of the GNP). It is also stated that more than half the expenditure is recovered by the Government through court fee, stamp duty and similar fees. (Pistor and Phillip, Rule of Law and Legal Institutions in Asian Economic Development 1960-'95, Harvard University, quoted in NLSIU Report on History of District Courts in India, mimeograph 1998 at p.195).
13.4.11 At present excepting in 3 or 4 States, there is no scientific and systematic training programme available to the judicial officers either at induction or in later stages of their career. Wherever they exist, the emphasis is on lectures on topics of procedure and substantive law where the trainees take the course with very little impact on them. Thus, by and large, judicial career is evolved in the country through the method of trial and error at great cost to the litigants and under risk of unjustifiable delay and distortion in the delivery of justice.
13.4.12 A Prognosis : Subordinate Judiciary in the next Millennium
It is now clear and widely acknowledged that there is no alternative excepting to address the problems of the subordinate judiciary squarely if democracy is to survive and rule of law is to prevail in the trying years ahead.
There should be a radical change in the structure and status of the subordinate judiciary during the closing years of the century. Indeed, that is what the First National Judicial Pay Commission is attempting to achieve.
13.4.13 What will be the nature of the Subordinate Judiciary in 2000 AD or immediately thereafter? Indications are that there will be appreciable number of women and a large number of S.C., S.T. and Backward Class Members in judicial service at all levels and more particularly at the induction stage. If an All India Judicial Service is brought about at least at the level of District Judges, then it may provide better opportunities for appointment to High Courts. If the status and service conditions of subordinate judges are improved, the better talents may vie each other to enter judicial service. If new technologies and better management practices are made available, the capacity of an average judge to handle complex litigation will be greatly enhanced and the litigational time will be considerably reduced. A variety of Alternate Dispute Resolution Methods will be in place taking away a heavy chunk of disputes from courts and giving greater freedom to the judge to employ these strategies to manage his docket much more efficiently than to-day.
13.4.14 All these are welcome developments to the judges and the litigants. The problem arises in the diversity of work involved and the demand for greater professionalism in the process of judging and judicial administration. It is not only a question of acquiring varied knowledges and skills but also a matter of developing an attitude of mind and compatible behavioural patterns on the part of presiding officers.
This calls for intensive and extensive training of the kind that is neither conceived nor organized any where at present within the training institutions. An innovative and flexible curriculum which is constantly reviewed and developed is the need of the hour. Training has to be taken much more seriously by the trainers and the trainees for which structural reforms are necessary. A system of incentives and disincentives should elevate the status of training in the judiciary to the desired degree. Training should be made attractive and interesting by adoption of methods tested for adult education. Exercises and role plays should replace lectures and standard reading materials should be developed to make learning relevant and productive. In short, in the scheme of things in future, judicial training will have to be conceived and executed imaginatively if it has to influence judicial behaviour in a manner facilitative of change and efficiency.