Order
IA No. 77
1. The Justice Shetty Commission had suggested several recommendations to improve the working of judicial service in various States. In the recommendations made by the Shetty Commission it was suggested that there should be rationalisation of cadre structure and base structure and also recommended that there should be assured carrier promotion of the Civil Judges (Senior Division) and Civil Judges (Junior Division). The Commission also recommended that not exceeding 25% of the cadre posts of the District Judges should be reserved for direct recruitment. Various other recommendations have also been made by the Commission.
2. The matter had come up before this Court on the judicial side to consider the recommendations. After due considerations most of the recommendations of the Shetty Commission have been accepted by this Court. In All India Judges' Assn. (3) v. Union of India (2002) 4 SCC 247 this Court accepted the recommendations and gave approval to these recommendations. But certain changes have also been made by this Court while accepting these recommendations.
3. In para 27 of the abovementioned judgment this Court stated:
“27. … In order to achieve this, while the ratio of 75% appointment by promotion and 25% by direct recruitment to the Higher Judicial Service is maintained, we are, however, of the opinion that there should be two methods as far as appointment by promotion is concerned: 50% of the total posts in the Higher Judicial Service must be filled by promotion on the basis of principle of merit-cum-seniority. For this purpose, the High Courts should devise and evolve a test in order to ascertain and examine the legal knowledge of those candidates and to assess their continued efficiency with adequate knowledge of case law. The remaining 25% of the posts in the service shall be filled by promotion strictly on the basis of merit through the limited departmental competitive examination for which the qualifying service as a Civil Judge (Senior Division) should be not less than five years. The High Courts will have to frame a rule in this regard.”
4. After this judgment in All India Judges' Assn. (3) (2002) 4 SCC 247, the High Courts have amended the Service Rules and 25% posts of District Judges are being filled up by the limited departmental competitive examination. But many High Courts found it difficult to fill up 25% through such process. In some of the States as many as 50 posts of District Judges, to be filled up by the said exercise, remained vacant and there is no alternative method provided by which these vacant posts could be filled up. In some of the States, for example, in the States of Bihar, U.P and Kerala, there are adequate rules to the effect so that unfilled posts could be filled up by regular promotion. But in many States, there are no such rules to fill up these vacancies. Most of the States are in favour of reducing the percentage from 25% of limited departmental competitive examination, but many of the States, for example, States of Gujarat, Delhi, M.P, J&K and H.P maintained that this 25% should be continued but they are also of the view, in case there are vacant posts then they be filled up by regular promotion. For the time being, in many of the States, these unfilled vacancies are filled up by ad hoc promotions or temporary promotions. This certainly creates difficulty in service as later on when regular candidates will be available for promotion, the ad hoc/temporary District Judges are likely to be reverted as Civil Judges (Senior Division), which is not desirable for a judicial service.
5. In some of the States sufficient number of candidates are not available for being promoted under this particular category as a Civil Judge (Senior Division) in the normal course gets promotion before the completion of period of 5 years. As 25% quota is prescribed, a large number of vacancies remained unfilled and that is not good for the judicial administration in that State.
6. Having regard to various strategies available, we are of the considered view that suitable amendment is to be made for this 25% quota of limited departmental competitive examination. We are also of the view, with the past experience, that it is desirable that 25% quota be reduced to 10%. We feel so as the required result, which was sought to be achieved by this process could not be achieved, thus it calls for modification.
7. Thus, we direct that henceforth only 10% of the cadre strength of District Judges be filled up by limited departmental competitive examination with those candidates who have qualified service of five years as Civil Judge (Senior Division). Every year vacancies are to be ascertained and the process of selection shall be taken care of by the High Courts. If any of the post is not filled up under 10% quota, the same shall be filled up by regular promotion. In some of the High Courts, process of selection of these 25% quota by holding limited departmental competitive examination is in progress, such process can be continued and the unfilled seats, if meritorious candidates are available, should be filled up. But if for some reason the seats are not filled up, they may be filled up by regular promotion and apply the usual mode of promotion process. Thus we pass the following order.
8. Hereinafter, there shall be 25% of seats for direct recruitment from the Bar, 65% of seats are to be filled up by regular promotion of Civil Judge (Senior Division) and 10% seats are to be filled up by limited departmental competitive examination. If candidates are not available for 10% seats, or are not able to qualify in the examination then vacant posts are to be filled up by regular promotion in accordance with the Service Rules applicable.
9. All the High Courts are hereby directed to take steps to see that existing Service Rules be amended positively with effect from 1-1-2011. If the Rules are not suitably amended, this order shall prevail and further recruitment from 1-1-2011 shall be continued accordingly as directed by us. The time schedule prescribed in the order dated 4-1-2007 (in Malik Mazhar Sultan case (2008) 17 SCC 703) shall be strictly adhered to for the purpose of selection. All the vacancies are to be filled up in that particular year and there shall not be any carry forward of the unfilled posts.
10. Now we shall deal with individual States so as to give a clear picture of the whole issue.
In re: Maharashtra
11. Total cadre strength of the District Judges is 309. But it is brought to our notice that working strength is 198 and there are 111 vacant posts in the State. Of course some selection process is going on for 69 posts (14 direct, 42 limited competitive and 13 promotion). In the cadre of Civil Judge (Senior Division) 7 vacancies and 61 vacancies of Civil Judge (Junior Division) exist as on 1-1-2010. 50 posts have already been filled up and 50 posts are yet to be filled up by issuance of orders by the State Government. Urgent steps are to be taken by the State within four weeks and to file a report before this Court in this regard.
In re: Delhi
12. There are about 116 vacant posts of Civil Judge (Junior Division), out of which 64 posts have already been advertised and the remaining posts could not be advertised as there is paucity of court accommodation and other infrastructure. Mrs Anil Katiyar, learned counsel appearing for the Delhi Government stated that urgent steps will be taken to create all infrastructural facilities for courts and the same is recorded. Steps may be taken at the earliest and this Court to be apprised about it within a period of six months.
In re: Gauhati
13. It is stated that there is lack of infrastructure to house the courts of Civil Judge (Senior Division). The High Court is directed to take urgent steps to see that sufficient accommodation is made available to the courts at the earliest.
In re: Tripura
14. There are 6 vacancies of District Judges earmarked for the limited competitive examination. These seats may be filled up by regular promotion of Civil Judge (Senior Division) and there are 17 vacancies of Civil Judge (Junior Division) and 8 vacancies of Civil Judge (Senior Division). Steps be taken urgently to fill up these vacancies.
In re: Jammu & Kashmir
15. In the State of Jammu & Kashmir, there are 32 vacancies of Civil Judge (Junior Division). The Public Service Commission has conducted the selection. We are told that the written examination is over and the result is awaited. The Public Service Commission is directed to take urgent steps to see that the process of selection is over and the result of the examination be declared at the earliest at least within a period of four months.
16. A copy of this order be furnished to the Public Service Commission, Jammu & Kashmir, for necessary action at its end. Thereafter the State Government to take appropriate steps for issuing appointment letters to the selected candidates.
In re: Uttarakhand
17. Deferred.
In re: Jharkhand
18. There are 65 vacancies of Civil Judge (Junior Division) and an examination was held by the State Public Service Commission on 2-9-2009 and still the results have not been published/declared by the Public Service Commission. Learned counsel for the High Court states that urgent steps will be taken to complete the process of selection.
In re: Kerala
19. There are about 23 vacancies of Civil Judge (Junior Division) out of which for about 15 vacancies, names have been recommended for appointment but the matter is pending with the Government. The Government is directed to complete the process and issue appointments within a period of four weeks. It is proposed to promote 6 vacancies to the cadre of District Judges and the matter is also pending with the Government. The Government is directed to issue appointment orders within four weeks.
In re: Andhra Pradesh
20. Appointments of 69 candidates for the posts of Civil Judge (Junior Division) is pending with the Government since January 2010. Learned counsel for the State of A.P submitted that immediate steps would be taken and the State is directed to take urgent steps within a period of six weeks to issue appointments.
In re: Uttar Pradesh
21. Appointments as regards 116 posts of District Judges in the State of Uttar Pradesh are pending with the Government. The Government has sought certain clarifications from the High Court and the same has been received only two weeks back. Learned counsel for the State submits that urgent steps would be taken to fill up these vacancies, which is hereby recorded. The State will issue suitable directions at least within a period of eight weeks.
22. Appointment as regards 7 posts of Civil Judge (Junior Division) in the State of Uttar Pradesh is pending with the Government. Learned counsel for the State submits that urgent steps would be taken to fill up these vacancies and that is recorded. The State will issue suitable directions at least within a period of eight weeks.
23. IAs Nos. 80 and 81 are disposed of, in terms of the order passed above.
In re: Bihar
24. In the State of Bihar, there are 80 vacancies of Civil Judge (Junior Division) and they are to be filled up. The matter is pending with the Government. Learned counsel for the State submits that urgent steps would be taken to fill up these vacancies at the earliest, within a period of eight weeks which is recorded.
In re: Karnataka
25. Deferred.
In re: Rajasthan
26. Deferred. All the High Courts to file the compliance report positively within six weeks, on affidavit.
IA No. 78
27. Issue notice. Let the State file its report/response within six weeks.
28. The Registrars of various High Courts who are present today, may not remain present on the next date of hearing, unless so directed.
29. List after six weeks.
Court Masters