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His Majesty desirous of becoming candidates for appointment service. to the Civil Service of India.

(2) The regulations prescribe the age and qualifications of the candidates, and the subjects of examination.

(3) Every regulation made in pursuance of this section must be forthwith laid before Parliament.

(4) The candidates certified to be entitled under the regulations must be recommended for appointment according to the order of their proficiency as shown by their examination.

(5) Such persons only as are so certified may be appointed or admitted to the Civil Service of India by the Secretary of State in Council (a).

(a) The civil service referred to in these sections is the service which used to be known as the covenanted civil service, but which, under the rules framed in pursuance of Sir Charles Aitchison's Commission, is designated the Civil Service of India. See above, p. 125.

Where a child of a father or mother who has been naturalized under the Naturalization Act, 1870 (33 & 34 Vict. c. 14), has during infancy become resident with the father or mother in any part of the United Kingdom he is, by virtue of s. 10 (5) of that Act, a naturalized British subject, and is entitled to be treated under the enactment reproduced by this clause as if he were a natural-born British subject. The expression includes a native of British India, but would, apparently, not include a subject of a Native State in India.

[21 & 22 Vict. c.

106, s. 32.]

reserved

servants.

93. Subject to the provisions of this Digest, all vacancies Offices happening in any of the offices specified or referred to in the to civil Second Schedule to this Digest, and all such offices which may [24 & 25 be created hereafter, must be filled from amongst the members Vict. c. of the Civil Service of India belonging to the presidency 33 Geo. III, c. 52, wherein the vacancy occurs. s. 57.]

The provision of the Act of 1793 as to filling vacancies from among members belonging to the same presidency appears to be still in force, but has given rise to practical difficulties, and seems inapplicable to such offices as that of secretary to the Government of India.

54, S. 2.

94. (1) The authorities in India by whom appointments Power to appoint are made to offices in the Civil Service of India may appoint natives of any native of India of proved merit and ability to any such India to reserved office, although he has not been admitted to that service in offices. [33 & 34 accordance with the foregoing provisions of this Digest.

Vict. c. 3, s. 6.]

(2) Every such appointment must be made subject to such rules as may be prescribed by the Governor-General in Council, and sanctioned by the Secretary of State in Council with the concurrence of a majority of votes at a meeting of the Council of India.

(3) For the purposes of this section the expression ‘native of India' includes any person born and domiciled in British India, of parents habitually resident in British India, and not established there for temporary purposes only; and the Governor-General in Council may by resolution define and limit the qualification of natives of India thus expressed; but every resolution made by him for that purpose will be subject to the sanction of the Secretary of State in Council, and will not have force until it has been laid for thirty days before both Houses of Parliament.

The enactment reproduced by this section is not very clearly expressed, and runs as follows:

Whereas it is expedient that additional facilities should be given for the employment of natives in India, of proved merit and ability, in the civil service of Her Majesty in India: Be it enacted, that nothing in the Government of India Act, 1858, or in the Indian Civil Service Act, 1861, or in any other Act of Parliament or other law now in force in India, shall restrain the authorities in India by whom appointments are or may be made to offices, places, and employments in the civil service of Her Majesty in India from appointing any native of India to any such office, place, or employment, although such native shall not have been admitted to the said Civil Service of India in manner in s. 32 of the firstmentioned Act provided, but subject to such rules as may be from time to time prescribed by the Governor-General in Council and sanctioned by the Secretary of State in Council, with the concurrence of a majority of members present; and that for the purpose of this Act the words "natives of India" shall include any person born or domiciled within the dominions of Her Majesty in India, of parents habitually resident in India, and not established there for temporary purposes only; and that it shall be lawful for the Governor-General in Council to define and limit from time to time the qualification of natives of India thus expressed; provided that every resolution made by him for such purpose shall be subject to the sanction of the Secretary of State in Council, and shall not have force until it has been laid for thirty days before both Houses of Parliament.'

For the history of the successive rules made under this section, see above, p. 124. The expression ‘native of India' as defined by the section is construed as including persons born or domiciled in a Native State.

95. (1) Where it appears to the authority in India by Power to make prowhom an appointment is to be made to any office reserved to visional members of the Civil Service of India, that a person not being appoint

ments in

cases.

Vict. c.

54, 88.3, 4.]

a member of that service ought, under the special circum- certain stances of the case, to be appointed thereto, the authority may [24 & 25 appoint thereto any person who has resided for at least seven years in India, and who has, before his appointment, fulfilled all the tests (if any) which would be imposed in the like case on a member of that service.

(2) Every such appointment is provisional only, and must forthwith be reported to the Secretary of State in Council, with the special reasons for making it; and unless the Secretary of State in Council approves the appointment, with the concurrence of a majority of votes at a meeting of the Council of India, and within twelve months from the date of the appointment notifies such approval to the authority by whom the appointment was made, the appointment must be cancelled.

PART IX.

THE INDIAN HIGH COURTS.

Constitution.

tion of

96.—(1) (a) Each high court consists of a chief justice, Constituand as many judges, not exceeding fifteen (b), as His Majesty high may think fit to appoint.

(2) A judge of a high court must be—

courts.

[24 & 25 Vict. c. 104, SS. 2,

(a) A barrister of England or Ireland, or a member of the 19.1 Faculty of Advocates in Scotland, of not less than five years' standing; or

(b) A member of the Civil Service of India of not less than ten years' standing, and having for at least three years served as or exercised the powers of a district judge; or (c) A person having held judicial office not inferior to that of a subordinate judge, or a judge of a small cause court, for a period of not less than five years; or

Tenure of office of

(d) A person having been a pleader (c) of a high court for a period of not less than ten years.

(3) Provided that not less than one-third of the judges of a high court, including the chief justice, must be such barristers or advocates as aforesaid, and that not less than one-third must be members of the Civil Service of India.

(a) There are four chartered high courts: at Calcutta, Madras, Bombay, and Allahabad.

(b) There is power in all cases to raise the number to this maximum. (c) The word ' pleader' in the enactment reproduced by this section apparently includes every one who has for ten years been allowed to 'plead' in the Indian sense, i. e. to act as a barrister in the high court, though not a barrister or member of the Faculty of Advocates.

97.-(1) Every judge of a high court holds his office

judges of during His Majesty's pleasure (a).

high courts.

[24 & 25

Vict. c.

204, s. 4.]

Prece

(2) Any such judge may resign his office, in the case of the high court at Calcutta, to the Governor-General in Council, and in the case of any other high court to the local Government of the province in which the high court is established.

(a) As to tenure during pleasure, see the note on s. 21 above.

98. (1) The chief justice of a high court has rank and judges of precedence before the other judges of the same court.

dence of

high courts.

Vict. c.

Salaries,

&c., of

(2) All the other judges of a high court have rank and [24 & 25 precedence according to the seniority of their appointments, 104, s. 5.] unless otherwise provided by the terms of their appointment. 99. The Secretary of State in Council may fix the salaries, allowances, furloughs, retiring pensions, and (where necessary) expenses for equipment and voyage of the chief justices and judges of the several high courts, and from time to time. alter them, but any such alteration does not affect the salary of any judge appointed before the date thereof.

judges of high

courts.

[24 & 25 Vict. c.

104, s. 6.]

Provision for va

For existing salaries and allowances, see note on s. 80.

100.-(1) On the occurrence of a vacancy in the office of cancy in chief justice of a high court, and during any absence of the office such a chief justice, the Governor-General in Council in the justice or case of the high court at Calcutta, and the local Govern

of chief

judge.

ment in other cases, is to appoint one of the judges of the other same high court to perform the duties of chief justice of [24 & 25 the court until some person has been appointed by His Majesty 104, s. 7-1 to the office of chief justice of the court, and has entered on the discharge of the duties of that office, or until the chief justice has returned from his absence, as the case requires (a).

(2) On the occurrence of a vacancy in the office of any other judge of any such high court, and during any absence of any such judge, or on the appointment of any such judge to act as chief justice, the Governor-General in Council or local Government, as the case may be, may appoint a person, with such qualifications as are required in persons to be appointed to the high court, to act as a judge of the high court; and the person so appointed may sit and perform the duties of a judge of the court until some person has been appointed by His Majesty to the office of judge of the court, and has entered on the discharge of the duties of the office, or until the absent judge has returned from his absence, or until the Governor-General in Council or local Government sees cause to cancel the appointment of the acting judge (b).

(a) Apparently the person appointed to act for the chief justice need not be a barrister-judge, though the chief justice himself must be a barrister. See s. 97 above.

(b) The appointment remains in force until the occurrence of one of the contingencies mentioned in this sub-section, and hence cannot be made for a specified time. Probably the 'acting judge' referred to at the end of the sub-section is the judge acting as chief justice referred to above. There is no limit of time within which the appointment must be made. See Rao Balwant Singh v. Rani Kishori L. R. 25 I. A. 54, 76.

Jurisdiction.

Vict. c. 7.]

Jurisdic

tion

courts.

101.-(1) Subject to any law made by the GovernorGeneral in Council (a), the several high courts have such of high jurisdiction, original and appellate, including admiralty juris- [13 Geo. III, c. 63, diction in respect of offences committed on the high seas, and Ss. 13, 14. all such powers and authority over or in relation to the 21 Geo. III, c. 70, administration of justice, including power to appoint clerks s. 8. 33 Geo. and other ministerial officers of the court, and power to make ÏÏI, c. 52,

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