the salary of the member of council whose place he supplies, and also half the salary of any other office he may hold, if he hold any such office, the remaining half of such last-named salary being at the disposal of the Governor-General in Council or Governor in Council, whichever may appoint to the office. (5) Provided as follows: (a) No person may be appointed a temporary member of council who might not have been appointed as hereinbefore provided to fill the vacancy supplied by the temporary appointment; and (b) If the Secretary of State informs the governor-general that it is not the intention of His Majesty to fill a vacancy in the council of the governor-general, no temporary appointment may be made under this section to fill the vacancy, and if any such temporary appointment has been made before the date of the receipt of the information by the governor-general, the tenure of the person temporarily appointed ceases from that date. (a) The words 'to duty' are not in the Act, but seem to express the intention. [37 & 38 Vict. c. 91, 8. 2.] members 88. (1) An additional member of the council of the Vacancies amongst governor-general or of a governor, or a member for legis- legislative lative purposes of the council of a lieutenant-governor or of council. chief commissioner, may resign his office to the governorgeneral, governor, lieutenant-governor, or chief commissioner, and on the acceptance of the resignation the office becomes 55 & 56 vacant. Vict. c. 67, ss. 12, 31. Vict. c 14, S. 4 (2) If any such member is absent from India or unable (1).] to attend to the duties of his office for a period of two consecutive months, the governor-general, governor, lieutenantgovernor or chief commissioner, as the case may be, may declare by a notification published in the Government Gazette, that the seat in council of that member has become vacant. The filling of vacancies is now regulated by the Regulations of November 15, 1909 (as amended in 1912), made under the Indian Councils Act, 1909. Leave on Power to make regulations as 89. The Secretary of State in Council may, with the concurrence of a majority of votes at a meeting of the Council of India, make regulations as to the absence on sick leave or furlough of persons in the service of the Crown in India, and the terms as to continuance or diminution of pay, salary, and allowances on which any such sick leave or furlough may be granted. 90. The Secretary of State in Council may, with the concurrence of a majority of votes at a meeting of the Council to Indian of India, make regulations for distributing between the several authorities in India the power of making appointments to and promotions in offices, commands, and employments under the c. 85, s. 78. Crown in India. appoint- Will. IV. 21 & 22 Vict. c. 106, ss. 30, 37.] No disabilities in religion, PART VIII. THE INDIAN CIVIL SERVICE. 91. No native of British India, nor any natural-born subject respect of of His Majesty resident therein, is, by reason only of his religion, place of birth, descent, or colour, or any of them, disabled from holding any place, office, or employment under His Majesty in India. colour, or place of birth. [3 & 4 Will. IV, c. 85, s. 17.] Regulations for admission to civil service. This reproduces s. 87 of the Act of 1833, with the substitution of 'British India' for the said territories,' and 'His Majesty in India' for the said Company.' See the comments on this enactment in pars. 103-109 of the dispatch of December 10, 1834. 92. (1) The Secretary of State in Council may, with the advice and assistance of the Civil Service Commissioners, make regulations for the examination of natural-born subjects of His Majesty desirous of becoming candidates for appointment 106, s. 32.] to the Indian Civil Service. [21 & 22 Vict. c. (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 Indian Civil Service 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 usually designated the Indian Civil Service. 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 or with the father while in the service of the Crown out 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. reserved to civil servants. 93. Subject to the provisions of this Digest, all vacancies Offices happening in any of the offices specified or referred to in the Second Schedule to this Digest, and all such offices which may be created hereafter, must be filled from amongst the members of the Indian Civil Service. The provision of the Act of 1793 as to filling vacancies from among members belonging to the same presidency was repealed by 2 & 3 Geo. V, c. 6, s. 4. 94. (1) The authorities in India by whom appointments are made to offices in the Indian Civil Service may appoint any native of India of proved merit and ability to any such office, although he has not been admitted to that service in accordance with the foregoing provisions of this Digest. (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 [24 & 25 Vict. c. 54, s. 2.] Power to natives of appoint India to offices. [33 & 34 Vict. c. 3, s. 6.] reserved Power to visional 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. 150. The expression native of India' as defined by the section has been construed as including persons born or domiciled in a Native State. 95.-(1) Where it appears to the authority in India by make pro- whom an appointment is to be made to any office reserved to members of the Indian Civil Service, that a person not being a member of that service ought, under the special circumstances of the case, to be appointed thereto, the authority may appoint thereto any person who has resided for at least seven years in India, and who has, before his appointment, fulfilled appoint ments in certain cases. [24 & 25 Vict. c. 54, SS. 3, 4. Geo. V, all the tests (if any) which would be imposed in the like case 1 & 2 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. c. 18, s. 1.] PART IX. THE INDIAN HIGH COURTS. Constitution. 96.—(1) (a) Each high court consists of a chief justice, and as many other judges, not exceeding nineteen (b), as His Majesty may think fit to appoint. (2) A judge of a high court must be (a) A barrister of England or Ireland, or a member of the 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 (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. Constitu tion of high courts. [24 & 25 Vict. c. 104, SS. 2, 19. 1 & 2 Geo. V, c. 18, s. 1.] |