Judicial Appointment in Superior Judiciary

In the United Kingdom and other common law jurisdictions, say Australia, Canada and the New Zealand as well as the United States, the appointments to the superior judiciary are exclusively by the executive with varying degrees of control. In the United Kingdom the appointments are made on the recommendations of the Lord Chancellor or the Prime Minister depending on the level at which the appointment is made. In Australia, the appointments are made by the executive in the name of the Governor- General or Governor in council depending on whether the appointments are to the High Courts or other federal courts or at the State-levels. In Canada the appointments are essentially by the executive whereas in New Zealand the judiciary plays an active role but the appointment is made on the recommendation of the Cabinet by the Governor-General. In the United States the appointment to the Supreme Court is made on the nomination by the President subject to confirmation by the Senate. It will thus be seen that in these developed countries whose people are no less jealous of preserving judicial independence, the initial appointment at the entry stage is by the executive.

Continue Reading

Judicial service meaning of

One should not lose sight of the important fact that appointment to the judicial office cannot be equated with the appointment to the executive or other services. in a recent judgment in All India Judges’ Association v. Union of India JT 1993 (4) SC 618 renderd by a three Judges Bench presided over by M. N. Venkatachaliah, C. J. and consisting of A. M. Ahmadi and P. B. Sawant, JJ. the following observations are made:

“………..The judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, that is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive.

Similarly, the legislators are different from the legislative staff. So also the judges from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the adminstrative executive. In some democracies like the U.S.A., members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of other services.

The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally ……………………………………………….It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the judges and those of the members of the other services………………………………………………………………………….As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged.”

(Emphasis supplied)

Apex Court is in favour of disclosing marks of Main Exam before conducting viva-voce in Judicial Services-13/12/2019

SUPREME COURT OF INDIA JUDGMENTS

As the written examination assesses knowledge and intellectual abilities of a candidate, the interview is aimed at assessing their overall intellectual and personal qualities which are imperative to hold a judicial post.

Disclosing mark of written Examination before Viva-Voce-As regards the petitioners’ plea that marks of the Main Exam should be disclosed before conducting viva-voce, we are of the considered opinion that such a practice may not insulate the desired transparency, rather will invite criticism of likelihood of bias or favourtism. The broad principles to be laid down in this regard must be viewed keeping in view the selections for various categories of posts by different Selecting Authorities, for such a self-evolved criteria cannot be restricted to Judicial Services only. If the Members of the Interviewing Boards are already aware of the marks of a candidate secured in the Written Examination, they can individually or jointly tilt the final result in favour or against such candidate.The suggested recourse, thus, is likely to form bias affecting the impartial evaluation of a candidate in viva-voce. The acceptance of the plea of the petitioners in this regard will also run contrary to the authoritative pronouncement of this Court in Ashok Kumar Yadav and Others v. State of Haryana((1985) 4 SCC 417).

Continue Reading

West Bengal Higher Judicial Service [English Paper Main Examination 2017]

The High Court at Calcutta Direct Recruitment to the cadre of District Judge in from the Members of the Bar/Limited Competitive Examination, 2017

Paper I

Full Marks : 100

Time : 3 hours

A) Write Essays on any three of the following subjects: – 15×3

1)   Equity will not allow a remedy that is contrary to law.

2) Justice must not only be done, but should manifestly and undoubtedly be seen to be done.

3) Life imprisonment vs. Death sentence,
4) Gender discrimination cannot be eradicated without ‘affirmative action’.

B) Make a precis from any one of the following passages:  25

1) Identity theft is one of the biggest threats that an individual faces today. It can happen when cyber thieves steal your personal information or trick you into sharing personal details. This may include obtaining your name, father’s name, date of birth, address, credit card numbers, bank account numbers, etc. The details are pieced together to create a matching identity, which the thieves then use to get access to your bank account
and withdraw money, secure government benefits such as loans in your name or take control of your credit card by changing your address without your knowledge. They even impersonate you on social media, causing embarrassment.

Phishing is a homonym for fishing, and is objective is to trick a web user to unknowingly furnish valuable financial information. The phishing attacks are primarily carried out through smartly crafted e-mails. These appear to have been sent by the recipient”s bank, credit card company or even someone trustworthy.

The goal is to trick the recipient to click on the company’s official email link. The “official” link, however, takes the recipient to a fake website, where the user without realizing enters his credit card number, password, etc.

Smart cyber thieves scour- social media sites to get personal information about the potential victim. This may include children’s names, schools they go to, etc. The phishing e-mail can come from the “school” asking the victim to furnish bank account details for fee purposes. Such tricks always create extra trust and fool the victim completely.

Phishing attacks are nothing short of a malicious internet epidemic. Worried Indian banks constantly educate their customers through e-mails, SMS messages and newspaper and television ads that they do not collect personal financial information. Yet, there are scores of gullible Indians, who, even today, fall for this cyber trickery.

or

2) The emphasis in law on notions of proof and probability, is also a way of acknowledging that facts are not as concrete as they may seem. All cases, whether Criminal or Civil, are decided according to the burden of proof. This too is a complex subject, and too intricate for full discussion here, though some basic points can be made. The burden of proof places the responsibility for establishing a particular fact on its proponent, so that if A claims that B injured her by his negligent driving, it is up to A to make out a case. The requirement of proof means that facts must be established to the satisfaction of the Court, but this does not mean absolute certainty. As Lord Guthrie has said: ‘Outside the region of mathematics, proof is never anything more than probability’ (Nobel)s Explosive Co. v British Dominions General Insurance Co. (1919) 1 SLT 205 at 206). It will be relatively unusual for facts in a case to be conclusive.

The term conclusive is one which need to be used with great caution. Technically, evidence is only conclusive where, by virtue of a rule of law, it cannot be contradicted – a widely cited example is the rule of law treating a child under the age of 10 as incapable of committing a crime. This technical meaning is thus different from the popular sense of the term, whether it is used to describe evidence that effectively chinches the case.

In reality, what is popularly called ‘conclusive’ is no more than evidence degree of probability. Thus, in coming to a conclusion on the evidence, the court is normally saying no more than : on the facts before us, we are as sure as we feel we need to be’.

The courts have attempted to define the burden of proof in terms of levels of probability; thus in civil cases we conventionally talk of proof ‘on a balance of probabilities’ and in criminal cases of a “higher standard” of ‘proof beyond reasonable doubt’. What these abstract concepts come to mean in individual cases remain open to question. It is widely accepted that such standards of proof are incapable of precise definition, a point to which we shall return later in this chapter. At the same time the use of terms such as ‘proof beyond reasonable doubt’ may often time the work to disguise the extent to which conclusions about the facts of a case are subjective. Put simply, it is not easy to draw the boundaries between doubts which are reasonable, and those which are not.

C) Translate the following two passages into English language: – 15×2

download_button_animated      SEE  THE FULL DOCUMENT

WEST BENGAL JUDICIAL SERVICE EXAMINATION, 2019 [ Civil Judge (Jr. Divn.)]

ADVERTISEMENT NO. 3 / 2019

The PSC Commission will hold the West Bengal Judicial Service Examination, 2019 for recruitment to the post of Civil Judge (Jr. Divn.) in West Bengal Judicial Service.

The W.B.J.S. Examination will be held in three successive stages, viz., (i) Preliminary Examination (MCQ Type), (ii) Final Examination (Conventional Type – Written) and (iii) Personality Test. A number of candidates to be selected on the results of the Preliminary Examination will be allowed admission to the Final Examination and a number of candidates to be selected on the results of the Final Examination will be called to appear at the Personality Test.

The Preliminary Examination will be held in Kolkata (Code – 01) and Darjeeling (Code – 02) in April, 2019 or thereabout. Only candidates of Kalimpong District and three Hill Sub-divisions of Darjeeling, viz., Darjeeling Sadar, Mirik and Kurseong will be allowed to appear at Darjeeling Centre.

The Final written Examination will be held at Kolkata in June, 2019 or thereabout. Personality test will be held thereafter in the office of the Public Service Commission, West Bengal.

SCHEME AND SYLLABUS

Preliminary Examination : The Preliminary Examination will consist of one paper of Objective Type containing 200 Multiple Choice Questions. The paper will carry 200 marks and will be of 21 /2 hours’ duration.

The Standard of the paper will be of the level of knowledge as expected of a graduate in Law of a recognized University. The paper will include questions covering the following fields of knowledge :

1. English Composition 30 marks
2. General Knowledge, Current Affairs and Test of Reasoning 40 marks

3. Indian Constitution 20 marks
4. Law of Contracts and Torts 20 marks
5. Laws of Evidence 20 marks
6. Civil Procedure Codes 20 marks
7. Criminal Procedure Code and Indian Penal Code 20 marks
8. Personal Law 10 marks
9. Law of Limitation 20 marks

Syllabus for Preliminary Examination: Questions on English Composition will cover
synonyms, antonyms, idioms and phrases, vocabulary test, phrasal verbs, the same words bearing more than one meaning, use of appropriate and qualifying words etc.

Final Examination: The Final examination will consist of eight compulsory papers and three papers on optional subjects to be chosen by the candidates from the list of Optional Subjects. Each compulsory and Optional paper will carry 100 marks and will be of three hours duration.

Compulsory Papers :

1. English Composition, essay, précis writing ;
2.Bengali/Hindi/Urdu/Nepali/Santali composition, essay and translation from English into Bengali/Hindi/Urdu /Nepali/Santali ;
3. General Knowledge and Current Affairs ;

4. Civil procedure Code ;
5. Criminal Procedure Code and Indian Penal Code ;
6. Indian Evidence Act ;
7. Law of Contracts and Torts and
8. Transfer of Property Act.

Optional Papers (any three to be chosen) :

1. Hindu Law ;
2. Muhammadan Law ;
3. Jurisprudence and principles of legislation ;
4. Indian Law relating to Companies and Insurance ;
5. Principles of Equity including the Law of Trusts and Specific Relief ;
6. Partnership Act ;
7. Law of Limitation and Law of Prescription ;
8. The Indian Constitution and Constitutional Law.

The standard of examination in the Law papers (Compulsory and Optional) will be that of the LL.B. Degree of the Calcutta University. All answers must be written either in English or in Bengali (unless otherwise directed in the question papers) except in the language papers.

Personality Test: 100 marks.

The Preliminary Examination is meant to serve as a screening test only for the purpose of selection of candidates for the Final Examination. The marks obtained by the candidates in the Preliminary Examination will not be counted for the purpose of determining the final merit list. The Final merit list will be prepared on the basis of total marks obtained in the Final Examination and the Personality Test. There shall be no separate qualifying marks for any individual paper or for the Personality Test. The Commission shall have discretion to fix qualifying marks in the aggregate.

In all the answer papers of the Final Examination due credit will be given for proper economy of words combined with clarity and effectiveness of expression and originality of approach.

Deduction of Marks: A deduction of 10% of full marks may be made from the total marks
secured by a candidate in a particular paper if he/she discloses his/her identity by writing his/her name, roll number or by putting any identifying marks inside the Answer Script of that paper.


For further details and assistance the candidates may contact the following
numbers on any working day from 10-00 a.m. to 6-00 p.m.
(033) 2262-4181 [Related to Offline Payment]
(033) 4003-5104 [Related to Online Payment]
For Technical Support :
9836219994
9836289994 Help Desk
9073953820
Email-id :- pscwbhelp@gmail.com

Original Notification

Uttar Pradesh Higher Judicial Service Syllabus

[See Rule­18 of the Uttar Pradesh Higher Judicial Service Rules, 1975 (as amended)]

SYLLABUS PRESCRIBED FOR THE RECRUITMENT OF THE OFFICERS

IN UTTAR PRADESH HIGHER JUDICIAL SERVICE

The Examination for U.P. Higher Judicial Service will include the following subjects:

Paper No.1: General Knowledge

This paper will be of 100 marks and 3 hours duration.
There will be a paper of “General Knowledge”.

The paper may include questions based on topics relating to History of India and Indian Culture, Geography of India, Indian Polity, current national issues and topics of social relevance, India and the World, Indian Economy, International Affairs and Institutions and Development in the field of Science & Technology, communication and space.

The nature and standards of questions in these papers will be such that a well
educated person will be able to answer them without any specialised study.

Paper No.2: Language:

This paper will be of 100 marks and 3 hours duration. It shall comprise four
questions as specified below:­
(i) Essay to be written in English ­30 marks
(ii) English Précis writing ­30 marks
(iii) Translation of passage from Hindi to English ­20 marks
(iv) Translation of passage from English to Hindi ­20 marks

Paper No.3: Law­I (Substantive Law):

This paper will be of 200 marks and 3 hours duration.
The question set will be restricted to the field covered by

  1. The Law of Contracts,
  2. the Law of Partnership,
  3. the Law concerning easements and torts,
  4. the Law relating to transfer of property including the principles of equity specifically applicable thereto,
  5. the Principle of equity with special reference to the law of trust and specific relief,
  6. Hindu Law
  7. Mohammedan Law
  8. Constitutional Law.

There shall be questions of 50 marks in relation to Constitutional Law alone.

Paper No.4: Law II (Procedure and Evidence):

This paper will be of 200 marks and 3 hours duration.
Questions set will be restricted to the field covered by

  1. The Laws of evidence,
  2. the Criminal Procedure Code
  3. Code of Civil Procedure – including the principles of pleading.

The question set will relate mainly to practical matters such as the framing of charges and issues, the methods of dealing with the evidence of witnesses, the writing of judgment of session trials, appeals

Paper No.5: Law III (Penal, Revenue and Local Laws):

This paper will be of 200 marks and 3 hours duration.
Questions set will be restricted to the field covered by

  1. Indian Penal Code,
  2. the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1951,
  3. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. U.P.
  4. Municipalities Act,
  5. U.P. Panchayatraj Act,
  6. U.P. Consolidation and Holdings Act,
  7. U.P. Urban (Planning and Development) Act 1973,

together with Rules framed under the aforesaid Acts.

Answer to the questions of Local Laws will be compulsory. Question pertaining to
penal Laws will be of 50 marks, whereas that of Revenue and Local Laws will be of 150
marks.
Clarification—The candidates will have a choice to answer General Knowledge and Law
papers either in Hindi or in English.

Paper No.6: Interview:

The interview will be of 200 marks—The suitability of the candidate for
employment in the U.P. Higher Judicial Service will be tested with reference to his merit
giving due regard to his ability, character, personality and physique.

Notes:

(i) The candidates securing minimum aggregate 45% marks in the written examination shall be called to appear in the interview subject to maximum thrice the number of vacancies category­wise.
The interview shall be in a thorough and Scientific manner and shall take anything between 25 and 30 minutes for each candidates.
(ii) The candidate securing minimum 40% marks in the interview shall only be eligible to be included in the select list. The marks obtained in the interview will be added to the marks obtained in the written papers and candidate’s place in the select list will depend on the aggregate of both.


Lower Judicial Services Examination

Judicial services for the post of Munsif or Judicial Magistrate generally conducted by every state in India and usually called subordinate judges examination or lower judicial examinations.

General pattern of the syllabus is more or less common to all states 
such as :-
  1. Preliminary [Objective types]
  2. Main [descriptive types]
  3. Personality Test

Judicial Services conducted by the following States

Arunachal Pradesh Judicial Service
Assam Judicial Services
Bihar Judicial Services
Chattisgarh Judicial Services
Delhi Judicial Services
Goa Judicial Service
Haryana Judicial Services
Himachal Pradesh Judicial Services
Jammu & Kashmir Judicial Services
Jharkhand Judicial Services
Karnataka Judicial Service
Kerala Judicial Service
Madhya Pradesh Judicial Services
Maharashtra Judicial Service
Manipur Judicial Service
Mizoram Judicial Services
Nagaland Judicial Service
Odisha Judicial Service
Punjab Judicial Services
Rajasthan Judicial Services
Sikkim Judicial Service
Uttarakhand Judicial Services
Uttar Pradesh Judicial Services
West Bengal Judicial Services


Assam District and Sessions Judges Establishment (Ministerial) Services Rules, 1987

Notification No. JDJ. 282/84/123, dated 26th October, 1987.
1. Short title and commencement.
2. Definitions.
3. Service.
4. Status of the service.
5. Strength of Service.
6. Recruitment.
7. Conditions of eligibility.
8. Reservation.
9. Gradation list.
10. Confirmation.
11. Discharged or reversion before confirmation.
12. Seniority.
13. Right of appeal.
14. Pay.
15. Leave, pension, etc.
16. Power to dispense with or relax any rule.
17. Establishment of Special Judge.
18. Interpretation.
19. Power of transfer.


The Assam District and Sessions Judges Establishment (Ministerial) Services Rules, 1987

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Assam is pleased to make the following Rules regulating recruitment and conditions of service of persons appointed to the Assam District and Sessions Judges Establishment (Ministerial) Service, namely:

Preliminary

1. Short title and commencement. – (1) These Rules may be called “The Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987”.

(2) They shall come into force at once.

2. Definitions. – In these Rules unless there is anything repugnant in the subject or context-

(1) “Appointing authority” means the District and Sessions Judge ;

(2) “District and Sessions Judge” means the District and Sessions Judge of the District;

(3) “District and Sessions Judges Establishment” means and includes all non-gazetted ministerial staff in the office of the District and Sessions Judge Additional District and Sessions Judge Assistant District and Sessions Judge, Special Judge and Munsiffs of the District;

(4) “Government” means Government of Assam;

(5) “Members of the Service” means a member of the Assam District ana Sessions Judges Establishment (Ministerial) Service;

(6) “Additional District and Sessions Judge” means officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(7) “Special Judge” means an officer appointed as such under the Criminal Law (Amendment) Act, 1953;

(8) “Assistant District and Sessions Judge” means an officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(9) “Munsiff” means an officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(10) “Service” means the Assam District and Sessions Judges Establishment (Ministerial) Service;

(11) “Year” means the English Calendar year; and

(12) “Board” means the Selection Board consisting of a Chairman and two other Members.

Cadre

3. Service. – (1) The Service shall comprise of the following categories of posts:

(i) Sheristadar of District and Sessions Judge

(ii) Sheristadar of Additional District and Sessions Judge.

(iii) Sheristadar of Assistant District and Sessions Judge.

(iv) Head Assistant.

(v) Supervisory Assistant/Sheristadar of Munsiff/Upper- Division Assistant.

(vi) Lower Division Assistant.

(2) Each of the categories of posts in sub-rule (1) shall form an independent Cadre. Members of a lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in these rules.

4. Status of the service. – The Status of the members of the Service shall be that of class III non-gazetted ministerial service.

5. Strength of Service. – The number of posts, permanent as well as temporary, under each of the categories mentioned in sub-rule (1) of Rule 3 shall be such as may be determined by Government from time to time.

Recruitment

6. Recruitment. – Recruitment to the Service shall be made by the appointing authority according to the procedure laid down below:

(1) Sheristadar of District and Sessions Judge. – By selection from amongst the persons who must have served continuously as Sheristadar of Additional District and Sessions Judge or as Head Assistant in the District and Sessions Judges Establishment at least for 5 years.

(2) Head Assistant and Sheristadar of Additional District and Sessions Judge. – By selection from amongst the persons who must have served as Supervisory Assistant or a Sheristadar of Munsiff or a Sheristadar of Assistant District and Sessions Judge or Upper Division Assistant continuously for 3 years in the District and Sessions Judges Establishment.

Note. – For the purpose of promotion of Supervisory Assistant, Sheristadar of Assistant District and Sessions Judge, Sheristadar of Munsiff and Upper Division Assistant, the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge, Assistant District and Sessions Judge and Munsiff in the selection. The criterion for selection shall be on the basis of seniority-cum-merit and the Select list shall remain valid for one year from the date of recommendation of the Selection Board. It shall be reviewed after one year and all those eligible shall again be considered.

(3) Sheristadar of Assistant District and Sessions Judge, Supervisory Assistant, Sheristadar of Munsiff. – By promotion from amongst the Upper Division Assistants of the District and Sessions Judges Establishment (Ministerial) concerned on the basis of seniority-cum-merit who have rendered not less than 7 years of service in the District and Sessions Judges Establishment (Ministerial) concerned out of which at least 3 years shall be of continuous service as Upper Division Assistant on the 1st day of the year in which the promotion is made.

Note. – For the purpose of promotion of the Upper Division Assistant, the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge, Assistant District and Sessions Judge and Munsiff in the selection. The criterion for selection shall be on the basis of Seniority-cum-merit and the select list shall remain valid for one year from the date of recommendation of the Selection Board. It shall be reviewed after one year and all those eligible shall again be considered.

(4) Upper Division Assistant. – By promotion on the basis of seniority-cum-merit from amongst the Lower Division Assistants of the District and Sessions Judges Establishment who have rendered not less than 5 years of service on the 1st day of the year in which the promotion is made.

Note. – For the purpose of promotion the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge(s). Assistant District and Sessions Judges and Munsiffs in the selection. The criterion for selection shall be on the basis of seniority-cum-merit. The select list shall remain valid for one year. It shall be reviewed after one year and all those eligible shall again be considered.

(5) Lower Division Assistant. – (a) By direct recruitment on the basis of a competitive examination to be conducted by the District and Sessions Judge at the beginning of each year unless otherwise directed by Government in this behalf.

Note. – At the beginning of each calendar year the District and Sessions Judge shall call for applications to fill up up temporary vacancies of any kind of posts which are likely to occur in course of the year in their respective establishments. On receipt of applications by a specified date, a test shall be held and list of all candidates suitable for appointment to the posts of Lower Division Assistant shall be prepared in order of merit by the District and Sessions Judge. The list shall remain valid for one year unless it is extended earlier and one such list shall be prepared every year. The District and Sessions Judge shall make all appointments during the year from such a select list. The syllabus for such tests shall be as specified in the Schedule I.

(b) By selection strictly on the basis of merit from amongst the copyists, Typists of the District and Sessions Judges Establishment having educational qualifications as required for direct recruitment of Lower Division Assistants who have rendered not less than 7 years of service on the first day of the year in which the selection is made.

(c) By selection on the basis of seniority-cum-merit from amongst Grade IV staff of the District and Sessions Judges Establishment concerned who have passed the High School Leaving Certificate or equivalent examination and have rendered at least 7 years of continuous service in the District and Sessions Judges Establishment on the 1st day of the year in which selection is made.

Note. – (i) The proportion of vacancies to be filled up in any year according to Clauses (a), (b) and (c) of sub-rule (5) of this rule shall be 80 : 10 : 10 respectively. In the event of sufficient number of qualified or suitable persons not being available in category (b) and (c) the balance shall be made up from category (a), i.e. through direct recruitment. Here vacancies shall include both permanent and temporary vacancies.

(ii) Appointment by selection under Clauses (b) and (c) of sub-rule (5) of this rule shall be made by the District and Sessions Judge from amongst the eligible Grade IV staff.

7. Conditions of eligibility. – In order to be eligible for competing in the examination for appointment as Lower Division Assistant, a candidate must satisfy the following conditions:

(i) Nationality. – He must be a citizen of India.

(ii) Age limits. – He must not be less than 18 Years of age and more than 30 years of age on the first day of the year in which the examination is held:

Provided that in the case of candidates belonging to special categories, the upper age limit shall be subject to such relaxation as may be made by Government from time to time.

Explanation. – “Special categories” means persons belonging to Scheduled Castes/Scheduled Tribes, Political Sufferers, War Service candidates and such other persons or class of persons as may be notified by Government from time to time.

(iii) Educational Qualification. – He must have passed the High School Leaving Certificate Examination from a recognised University/Board or any examination declared equivalent thereto by the Government.

Note. – Pending conversion of all the existing Schools into Higher Secondary Schools and during the transitional period when both the old courses and the new courses continue together the instruction issued by Government from time to time in this regard shall be followed.

(iv) He must not have more than one wife living; provided the Government may for good and sufficient reasons exempt any candidate from the operation of this condition.

(v) No candidate shall be eligible for appointment if he, after undergoing such medical examination as Government may specify, is found to be not in good mental or bodily health and not free from any mental or physical defect likely to interfere in the discharge of his duties.

(vi) Inclusion of a candidate’s name in the list shall confer no right to appointment unless the appointing authority is satisfied after such enquiry as he may consider necessary that the candidate is suitable in all respects for appointment.

8. Reservation. – In all cases of appointment by direct recruitment as well as by promotion, there shall be reservation in case of candidates belonging to the member of Scheduled Caste/Scheduled Tribe as per provision of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and Rules framed thereunder. There shall also be reservation for candidates belonging to Other Backward Classes including More Other Backward Classes as per Government Instructions contained in O.M. No. ABP. 338/83/14, dated 4-1-1984 for direct recruitment only. General orders in respect of reservation in favour of other categories of candidates as may be in force for the time being, shall also be followed.

9. Gradation list. – A gradation list of the staff of the amalgamated establishment shall be prepared every year and the same shall be approved by the District and Sessions Judge and published once a year.

Confirmation, Seniority, etc.

10. Confirmation. – (1) Subject to availability of a permanent vacancy every member of the service shall be confirmed in the grade to which he is appointed if he-

(a) has completed at least one year of service to the satisfaction of the appointing authority; and

(b) is considered fit for confirmation by the appointing authority.

(2) Subject to the aforesaid conditions, confirmation shall be made on the basis of seniority as determined under Rule 11.

11. Discharged or reversion before confirmation. – At any time before confirmation a member is liable to be reverted to his next lower rank or to a lower post on which he holds a lien or be discharged from the service in case he is a direct recruit, if he cannot qualify for such confirmation even after a second chance or if his performance of duty has not been satisfactory and/or if the appointing authority finds him otherwise unfit to hold the post.

12. Seniority. – (i) In the Lower Division Cadre, the seniority shall be according to the date of appointment, if the persons join the appointments within 15 days of the receipt of the order of appointment:Provided that in case a persons is prevented from joining within the said period of 15 days by circumstances of a public nature or for reasons beyond his control, the appointing authority may extend it for a further period of 15 days. If the period is not so extended, his seniority shall be determined in accordance with the date of joining. Where however more than one person are appointed on the same date their inter-se seniority shall be determined according to their position in the merit list prepared by the District and Sessions Judge as mentioned in Note below Clause (a) of sub-rule (5) of Rule 6:

Provided further that the inter-se-seniority among Lower Division Assistants appointed under Clauses (a), (b) and (c) of sub-rule (5) of Rule 6 on the same date shall be according to the following order:

(a) Assistants appointed under Clause (a) of sub-rule (5) of Rule 6.

(b) Assistants appointed under Clause (b) of sub-rule (5) of Rule 6

(c) Assistants appointed under Clause (c) of sub-rule (5) of Rule 6.

(ii) In the Upper Division (including Sheristadar of Munsiff) Cadre, the seniority shall be according to the position in the select list from which the promotion to posts of Upper Division Assistant is made.

(iii) In the Head Assistant Cadre, the seniority shall be according to the date of promotion to the post of Head Assistant.

(iv) In the Sheristadar of District Judge Cadre, the seniority shall be according to the date of appointment.

(v) If confirmation of a member of the service in a Cadre is delayed on account of his failure to qualify for such confirmation, he shall lose his position in order of seniority in that Cadre vis-a-vis such of his juniors as may be confirmed earlier than him. His original position in that particular Cadre shall, however, be restored on his confirmation subsequently.

13. Right of appeal. – Every member of the service shall have the right to appeal from the orders of the District and Sessions Judge to the Government, i.e., Secretary to the Government of Assam, Judicial Department.

14. Pay. – The scale of pay admissible to members of different cadres shall be as shown in Schedule II subject to such revision as may be made by Government from time to time.

Miscellaneous

15. Leave, pension, etc. – Except as provided in these rules, all matters relating to pay, allowances, leave, pension, discipline and other conditions of service shall be regulated by general rules framed by Government from time to time.

16. Power to dispense with or relax any rule. – Where the appointing authority is satisfied that the operation of any of these rules may cause undue hardship in any particular case,it may dispense with or relax the requirement of that rule to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner:Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in any of these rules.

17. Establishment of Special Judge. – (1) The recruitment and conditions of service of the members of the Ministerial staff in the establishment of the Special Judge will be regulated mutatis-mutandis in accordance with these rules.(2) The Special Judge shall exercise the same powers as are vested in the District and Sessions Judge in relation to the Ministerial staff in his establishment.

18. Interpretation. – If any question arises relating to the interpretation of these rules, it shall be referred to the Government in the Judicial Department whose decision thereon shall be final.

19. Power of transfer. – The power of transfer and posting of staff from one District to another District vest with the Government in the Judicial Department.

20. Repeal and savings. – Any rules corresponding to these rules in force immediately before the commencement of these rules are hereby repealed.Notwithstanding such repeal any order made or any action taken under the rules so repealed shall be deemed to have been validly made or taken under the corresponding provisions of these rules.

Schedule I

[See Rule 6 (5)]

The syllabus for test for direct recruitment

Subject
Marks
1.
General English
75
2.
Official Language
75
3.
Drafting (English and Official language)
100
4.
Interview
50
Total
300
Schedule II
[See Rule 14]

Post

Scale of pay

1. Sheristadar of District Judge Rs. 875-40-1075-EB-40-1275-45-1500/- p.m.
2. Head Assistant Rs. 700-30-850-EB-35-1200/- p.m.
3. Sheristadar of Additional District and Sessions Judge Rs. 700-30-850-EB-35-1200/- p.m.
4. Sheristadar of Asstt. District and Sessions Judge Rs. 675-25-800-EB-30-1100/- p.m.
5. Supervisory Asstt./Sheristadar of Munsiff/Upper Division Assistant Rs. 675-25-800-EB-30-1100/- p.m. (special pay of Rs. 30/- p.m. is allowed to Sheristadar of Munsiff and Supervisory Assistant).
6. Lower Division Assistant

Rs. 470-12-530-EB-12-590-EB-15-680-20-800/- p.m.

Sivanandan C.T. & Ors. Vs. High Court of Kerala & Ors[SC 2017 November]

Keywords: Higher Judicial Service

sc

Referred to larger bench

Date: November 14, 2017


SUPREME COURT OF INDIA

Sivanandan C.T. & Ors. Vs. High Court of Kerala & Ors.

[Writ Petition (Civil) No. 229 of 2017] [Writ Petition (Civil) No. 232 of 2017] [Writ Petition (Civil) No. 379 of 2017] [Writ Petition (Civil) No. 618 of 2017]

O R D E R

1. The selection of District & Sessions Judges in the Kerala Higher Judicial Service in the year 2015 has given rise to this litigation. As per the Notification dated 30.9.2015 the selection was to be conducted by written examination and viva-voce. The written examination of two papers carried 300 marks (150 marks for each paper). The viva-voce was for 50 marks. It was stipulated that those general and OBC candidates who secured 50 percent in the written examination without any separate minimum and SC/ST who secured 40 percent were qualified to participate in the viva-voce.

2. In terms of the Resolution of the Full Court dated 13.12.2012, there should be no minimum cut-off marks for the interview. The final merit list was to be prepared in the following manner:- “..The merit list of successful candidates will be prepared on the basis of the total marks obtained in the written examination and viva-voce.”

As a matter of fact, two selections were held in the years 2013 and 2014 without cut-off marks for the viva-voce. As per the Resolution dated 13.12.2012, after publishing the result of the examination, the candidates were interviewed by the Selection Committee. However, after the viva-voce, the Administrative Committee (consisting of the same members as the Selection Committee) resolved to draw up a list of successful candidates on the basis of same separate minimum percentage of marks in the viva-voce as in the written examination.

According to the Administrative Committee, the fixing of the minimum marks for  the viva-voce was not a deviation from the approved scheme since “it was never the intention of the Full Court to select persons who do not attain the minimum required bench mark for such a responsible post”. The merit list thus drawn by the Administrative Committee on the basis of the minimum marks in the viva-voce was approved by the Full Court and those candidates were appointed accordingly. That selection is challenged in these cases.

3. The main contention is that the rules of the game could not have been changed after the game is played and the result of the game is known to the selectors.

4. Though several other contentions are raised by both sides, we find that the decision in K. Manjusree v. State of Andhra Pradesh and another, squarely applies to the facts of this case. In Manjusree (supra), 75 marks were allotted for the written examination and 25 marks for the interview. The aggregate governed the merit. However, the written examination was conducted for 100 marks. When the Full Court noticed this, a sub-committee was appointed to make the arithmetical correction to scale down the marks in the written examination to 75 instead of 100.

The sub-committee did two things –

(1) it made the arithmetical correction (2) it introduced the same cut-off percentage for the interview as in the written examination and thus revised the merit list, which was approved by the Full Court. In the process, a few candidates were removed from the original merit list including Manjusree. A Bench of three Judges of this Court held that “introduction of the requirement of the minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible”. The Bench specifically noted that the Resolution of the Full Court to not specifically stipulate minimum marks for viva-voce was still in force. Yet, when the sub-committee introduced the change, the same was approved by the Full Court.

5. Tej Prakash Pathak and others v. Rajesthan High Court and others has, however, specifically doubted the correctness of Manjusree (supra) on the point whether “….changing the rules of the game after the game was played…. is clearly impermissible” and has made a Reference to a larger Bench for an authoritative pronouncement. It is also relevant in this context to note that Salam Samarjeet Singh v. High Court of Manipur At Imphal and Anr. which dealt with almost a similar issue was heard by a three Judge Bench in view of the difference of opinion and it has also since been posted along with Tej Prakash (supra) by order dated 10.08.2017.

Hence, it is only appropriate to refer this matter also to the larger bench to be heard along with Tej Prakash (supra).

Ordered accordingly.

 (KURIAN JOSEPH)

 (R. BANUMATHI)