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IN THE SUPREME COURT OF INDIA Suo Motu Writ (Civil) No. 1 of 20L7
In re: Central Selection Mechanism versus UOI and others
Response on behalf of Gauhati High Court
to the concept note circulated by the Learned Amicus
1. That this Hon'ble couft vide order dated 04.08.2017 directed all the High coufts to file their response to the concept note prepared by
shri Aruind P. Datar, senior Advocate, the Learned Amicus. The concept note has suggested a central selection Mechanism (csM)
for holding of District Judge Recruitment Examination (DJURE) on All India basis for appointment in the direct recruitment quota of District Judge which comprises of 25o/o of the total cadre strength of
the District Judge. The Gauhati High court opposes holding of DJURE by way
of csM on All India basis, inter alia, on the ground
that the constitutional scheme does not permit selection for the post
of District Judges by an authority other than the
respective High
Courts.
constitutional scheme for subordinate Judiciary
2- chapter vI of part vI of the constitution of India (Article 233 to Afticle 237) makes provisions for subordinate courts. Article 233 (2) specifically provides that a person can be appointed by way of direct
recruitment
to the post of District Judge only if such person
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recommended by the High Court for appointment,,. Article 235 vests
full control over district courts in the High Court.
3. The scheme of selection and appointment to the
subordinate
judiciary was considered at length by a Constitution Bench of this Hon'ble Court in the case of State of Bihar vercus Bal Mukund Sah,
2000 (4) SCC 640. Honble Mr. Justice S.B. Majmudar speaking for
the majority, inter alia, held as under: 'Article 233 dealing with appointment of District Judges, on
its own
a complete scheme regarding the appointment of persons to the District express terminology prol.ects
In the present appeals, we are concerned with direct recruitment to the cadre of District Judges and hence sub-article (2) of Article 233 becomes Judiciary as District ludges.
relevant Apaft from laying down the eligibility criterion for candidates to be appointed from the Bar as direct District Judges the said provision is further hedged by the condition
that only those recommended by the High Court for such appointment could be appointed by the Governor of the State." (at Page 6ZZ g)
"This prime role
of the High Couft becomes cleaily
discernible from Article 235 which deals with the control
the High Court over the Subordinate Judiciary
of and also of
subordinate courts." (at Page 678 c)
"It has to be kept in view that once the Constitution provides a complete code for regulating recruitment and appointment to the District Judiciary and to the Subordinate Judiciary, it
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gets insulated from the interference of any other outside agency." (at page 683 b)
"However, direct recruitment as Distrid Judges has
to be
solely based on appropriate recommendations of suitable candidates by the High
Court'(at page 694 e-f)
"In the light ofthe aforesaid settled legal positioq thereforq
there cannot be any escape from the conclusion that
if the
process of appointment to the Subordinate Judiciary at the
district level
or the grass-root level is tried to
be
circumscribed or truncated by any direction as to reseruation
of auailable uacancies fur a given category of candidates it would certainly impinge upon the power of the High Couft in
suggesting appointment of suitable candidates to fill up the
posts of judicial officerc with
a
view to fructify the goal
of
furnishing effective mechanism of judicial administntion and
making the Judiciary fully uibranl effective and resultoriented. Such an independent Judiciary is the heaft of the constitutional scheme, as already discussed earlier." (at page
708 9-h) 'the recommendation of the High Coutt for appointmenb at
the apex level of the District Judiciary under Article 23J remain the sole repository of power to effect such recruitments and appointments." (at page 214 e)
"for making appointments on the recommendations of the High Court under Article 233 emanates only from the High
Court which forms the bedrock and very sout evercises." (at page 715 b)
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Honble Mr. Justice G.B. Pattanaik concurring with Hon,ble
Mr.
lustice S.B. Majmudar held as under:
"For direct recruitment to the post of District Judges in sub-article (2) ot Article 233, the Constitution
itself has indicated the eligibility criteria and the source of recruitment, leaving the manner of finat selection with the High Court itself." (at page 722 e-
0
Honble Mr. Justice IJ.C. Banerjee concurring with Hon,ble Mr. Justice S.B. Majmudar held as under:
"The incorporation of sub-articte (2) as regards a direct recruit District Judge on the basis of the recommendations of the High Court for appointment has as a matter of fact cemented the controversy, in
the event however, of there being any, as regards the method of consultation in the matter of appointment of District Judges.,, (at page 769 b)
It is respectfully submitted that the aforesaid judgment
by the
Constitution Bench of this Hon,ble Court has, in emphatic terms, has held that
Judges
it is the High Court alone which can select District
for direct recruitment in view of Article 233 (2) of
Constitution.
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4. It is fufther
submitted that as per Article 312 of the Constitution,
after amendment by the Constitution (Forty Second) Amendment Ad, !976, an All India Judicial Service can be constituted. However, such service can be constituted only by the Parliament by making a
law which is approved by the Council of States by majority of not less than 2/3'd members present and voting. No such law has been
made by the Parliament unlike All India Services Act,1951 for civil service under the Union and the States.
Government of India letter dated 2a.O4.2OL7
5. That the present suo motu proceedings have been initiated by this Hon'ble Court based
on letter of
Government
of India dated
28.04.20L7, which in turn was with reference to the discussion held in the Supreme Court during a meeting by the Arrears Committee of
this Hon'ble Court comprising of Hon,ble Mr. Justice A.K. Goel and Hon'ble Mr. Justice A.M. Khanwilkar wherein two Hon,ble judges of
Delhi High Court, officers of Government of India and two senior advocates were present. No other High Court or State Government
representative was present during the said meeting.
It
is submitted
that the Government of India before writing the aforesaid letter dated 28.04.20U to the Secretary General of this Hon,ble Court ought to have obtained views of various High courts.
Objection to the concept note by the Learned Amicus
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6. The objective behind the concept note circulated by the
Learned
Amicus is to ensure that the vacancies are filled within a time frame
and for the said purpose a tentative time line for DJURE has been suggested
in Para E. It is submitted that this Hon'ble Court
vide
judgment and order dated 04.01.2007 in the case of Malik Mazhar Sultan vercus U.P. Public Seruice Commifiion,2008 (17) SCC 703 has already prescribed a
time
schedule for holding of examination
for selection and appointment of subordinate judiciary at all levels including direct recruitment of District Judges. The tentative time line suggested by the Learned Amicus is broadly similar to the time schedule prescribed by this Hon'ble Court in the said judgment. This
Hon'ble Court
in the case of Malik Mazhar Sultan has thereafter
been monitoring the compliance of the time schedule and has been issuing suitable directions from time to time to the High Courts and
the State Governments to take appropriate action. This
Hon'ble
Couft has after the judgment and order dated 04.01.2007 monitored
the appointment and vacancy position of various High Courts on about 100 occasions and the last being on 26.08.2016. Thus it
is
respectfully submitted that the purpose behind the concept note of expeditious filling of vacancies
is
already in place in terms of the
judicial order passed by this Hon'ble Court in Malik Mazhar Sultan.
7, The Learned Amicus has suggested 4 written papers including the syllabus
of which one would be on local laws and custom
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observing that,
at present, the examinations are conducted in ad-
hoc fashion and there is no syllabus to enable the candidates to prepare in advance.
It
is submitted that the aforesaid observation of
the Learned Amicus is factually incorrect as almost all High Courts
have prescribed syllabus
for the written examination and
examinations are conducted as per time schedule fixed in the case
of Malik Mazhar Sultan. Schedule
Assam Judicial Service Rule
7(1) read with
B provides syllabus for written examination for
direct
recruitment and promotion under Limited Departmental Examination
for recruitment to Grade-I of Judicial Service. As per the said Rules there are 3 (three) written papers of 100 marks each and general category candidates must obtain 600/o marks and reserued category candidates must obtain 50o/o marks
There is
to be eligible for
interuiew.
a 4h paper of local language of 50 marks which
is
qualifying in nature. A candidate has to obtain minimum 35olo marks
in the said paper to qualify. The said local language paper is compulsory and narrative in nature. The marks obtained in paper IV
shall not be counted in the aggregate marks secured by the candidates in the examination for the purpose of final selection.
8.
The concept note does not provide minimum qualiffing marks in the
written examination and only provides that candidates should be called in the interview in the ratio of 1:5, that
is,5 (five) candidates
for each vacant post. The merit in the written examination is to be
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on the basis of "cumulative ranking comprising there
National and State ranks". Thus, a candidate may be selected in a
written examination though he may score very minimal marks in the written examination in Paper IV as there are no qualiffing marks for each paper.
9.
In the concept note, Paper IV consists of local laws, customary laws and local language.
It
is to be noted that in such scenario even if a
candidate omits to answer the local language portion of Paper IV,
the candidate may obtain qualiffing marks by answering other questions
of
local laws and customary laws, without having
sufficient knowledge of local language.
It
is submitted that if the Paper-IV (Law-IV
) is not made qualifuing
in nature, a candidate even not having good knowledge on laws, customs
&
practices, and local language
local
of a State and
skipping the said part of the Paper IV may very well get through merely on the basis of good marks in other papers
I, II & III.
The
importance of having local law/language paper is thus diminished, diluted and not likely to serve the desired purpose. 10.The present system of selection, training and appointment of District Judge in direct recruitment quota is as under:
Assam: Assam ludicial Services Rules, 2003 (As amended) has provided for
selection process for appointment
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to 25% of the posts in Grade-I
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(District Judge Cadre) by direct recruitment.
It
consists of following
three stages:-
1. 2, 3.
Preliminary Examination Main Written Examination
Interuiew
Preliminary Examination- (Screening Test) (consisting of objective
type questions of 100 Marks out of which 90 marks will cover General Knowledge, Aptitude, English and law papers and 10 marks
to test the proficiency in the official language (s) of the State of Assam).
Candidates in the ratio of 1:10 (10 candidates for one post) subject
to obtaining minimum 600/o marks in preliminary examination are called for main examination.
Main Written Examination-
It
consists
marks, Paper II-100 marks, Paper
III-
of 4 papers (paper I-100
100 marks and paper IV-50
Marks). Paper IV is to test the proficiency in official language(s) of
the state of Assam which is qualifoing in nature and marks obtained in it are not counted in the aggregate marks. Unless the qualifuing marks (350/o) in the language paper is secured by a candidate he/she is not considered for the next stage.
Detail syllabus for preliminary and main examination has been provided in Schedule B of the Assam Judicial Service Rules, 2003
Interview: (50 marks) Candidates in the ratio 1:3 subject to obtaining 60% marks in total and 45olo marks individually in paper-
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I,
il
&
III
and 35olo marks in official language paper (qualiffing) are
called for viva. The candidates shall have to secure minimum 600/o
marks
in the
interview. Viva-voce under
the present
system
followed by Gauhati High Curt is conducted by Hon'ble High Court Judges (ordinarily 3 Hon'ble Judges)
Nagaland/Mizoram/Arunachal Pradesh :In these three states also, similar selection process, as is followed in the state of Assam, in respect of selection of Grade-I officers by
direct recruitment, is followed. Interview marks allotted in these three states are Nagaland Arunachal Pradesh
-
- 50 marks, Mizoram -
35 marks and
50 marks,
The respective judicial service rules provides for detail provisions for selection of District Judges under direct recruitment quota.
Be
it noted that there is no language paper/Paper IV in main
examination in these three states. However, like in Assam 10 marks
are allotted to test the proficiency in local language in the preliminary examination in the state of Mizoram only.
In all the four states the time schedule for filling up the vacancies
by direct recruitment has been provided, in pursuant to
the
guidelines of the Hon'ble Supreme Court of India in lhe case Malik Mazhar Sultan & Anr, in the schedule F of the respective Judicial
Service Rules. The recruitment process
for direct recruitment to
District Judge Cadre starts with publishing of advertisement on 15h
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April and ends on 30s September on issuance of appointment letters by the competent authority.
11.It is further submitted that giving preference to Multiple
Choice
Questions (MCQ) format over Essay type questions dilutes the whole idea of selecting the best of candidates. The concept note emphasis MCQ for early declaration of result rather than assessing
merit by rigorous process of selection as is being done in State Judicial Seruices Examination. The skill
of a
prospective judge
cannot be tested by MCQs only whose primary job would be to write judgments.
l2.Furthermore, in the concept note, the written examinations for Paper
I, II and III are suggested to be held on the same day which
is highly impracticable as candidates cannot be expected to write
three papers with diverse course carrying 100 mark each which may be essay type questions or multiple choice questions on one day. The Advocate
- On -
Record examination conducted by this
Hon'ble Couft has four papers and there is only one paper in one day.
13.The concept note further refers to a resolution dated 22.04.2017 which is based on video conference by Arrears Committee of this Hon'ble Court with 24 High Courts on the same day.
It is submitted that Gauhati High Court also participated
in
the said video conference; however, it only shared the status of the
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Action Plan of the Gauhati High Couft for reduction of old pending cases and
it did not make any
comment on the issue
of
Central
Recruitment Mechanism and did not agree for CSM.
14.
It is further
submitted that the concept note suggested that there
would be Central Selection Committee for defining the policies for operation of the CSM comprising of 5 members, all nominated by
the Hon'ble Chief Justice of India. It has fufther been suggested that the secretariat constituted by the Central Selection Committee
would set the question papers, decide the syllabus, constitute interview boards. Thus, the entire selection process is sought to be conducted by the Central Selection Committee and it's Secretariat.
It
is submitted that the scheme suggested by the Learned Amicus is
contrary
to the constitutional mandate incorporated in
Article
233(2) of the Constitution as interpreted by this Hon'ble Court in Bal Mukund Sah, according to which
it is the High Court and High
Court alone which can select and recommend the candidate for direct recruitment to the post of District Judge.
If the proposal of
the Learned Amicus is accepted, the High Court would be left with performing mere ministerial work
of formally
recommending the
candidates selected by the Central Selection Committee
to
the
Governor for appointment.
15.In view of the submissions made herein above, the Gauhati High Court is of the opinion that the present system of selection and
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appointment for the post
of
District Judge
in direct recruitment
quota may be continued and the Central Selection Mechanism suggested by the Learned Amicus may not be applied in the States under the jurisdiction of the High Couft.
,p tl \h .l Reg
COURT
istrar General
GAUHATI HIGH COURT GUWAHATI
