Constitution of India – Art. 233 (2) – Article 233(2)3 declares that only a person not already in the service of either the Union or of the State shall be eligible to be appointed as District Judges – Whether the bar under Article 233(2) is only for the appointment or even for the participation in the selection process – Held, the text of Article 233(2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either of the Union or the State would still have the option, if selected to join the service as a District Judge or continue with his existing employment. Compelling a person to resign his job even for the purpose of assessing his suitability for appointment as a District Judge is not permitted either by the text of Art. 233(2)nor contemplated under the scheme of the constitution as it would not serve any constitutionally desirable purpose.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
(J. Chelameswar) and (Abhay Manohar Sapre) JJ.
August 9, 2016
CIVIL APPEAL NO.7358 OF 2016
(Arising out of SLP (C) No. 17466 of 2016)
Vijay Kumar Mishra and Another … Appellants
High Court of Judicature at Patna and Others … Respondents
J U D G M E N T
1. Leave granted.
2. To explore the true purport of Art. 233(2) of the Constitution of India is the task of this Court in this appeal. The facts of the case are very elegantly narrated in the first six paragraphs of the judgment under appeal. They are:
“The challenge in the present writ application is to the communication, dated 16th of February, 2016, whereby representation of the petitioners to appear in interview for the post of District Judge Entry Level (Direct from Bar) Examination, 2015, was rejected and a condition was imposed that petitioners will have to tender their rejection, first, from the Subordinate Judicial Service of the State of Bihar and only, thereafter, they could appear in the interview.
2. An Advertisement No. 01/2015 was issued inviting applications from eligible Advocates for direct recruitment in respect of 99 vacancies as on 31st of March, 2015. The cut off date for the eligibility was 5th of February, 2015. The petitioners appeared in the Preliminary as well as in the Mains Examination pursuant to such advertisement.
3. In the meantime, petitioners qualified for the Subordinate Judicial Service of the State of Bihar in 28th Batch. The petitioners accordingly joined the Subordinate Judicial Service of the State of Bihar in August, 2015.
4. The result of the Mains Examination of the District Judge Entry Level (Direct from Bar) was published on 22nd of January, 2016. Both the petitioners qualified in the Mains Examination.
5. The High Court published the detail of interview schedule and issued Call Letters for the interview to both the petitioners; but one of the conditions in the Interview Letter was ‘No-Objection Certificate of the Employer’. Therefore, the petitioners filed their representation before the Registrar General, Patna High Court, Patna, to appear in the interview. The requests were declined on 16th of February, 2016. The communication to one of the petitioners reads as under:-
The District & Sessions Judge
Dated, Patna the 16th February, 2016
With reference to your letter no. 80 dated 05.02.2016, I am directed to say that the Court have been pleased to reject the representation dated 05.02.2016 of Sri Vijay Kumar Mishra, Probationary Civil Judge (Junior Division), Siwan with regard to permission to appear in the interview in respect of District Judge Entry Level (Direct from Bar) Examination, 2015, in view of Article 233(2) of the Constitution of India, as he is already in the State Subordinate Judicial Service. However, he may choose to resign before participating in the interview, which resignation, once tendered, would not be permitted to be withdrawn.
The officer concerned may be informed accordingly.
6. It is the said letter, which is subject matter of challenge in the present writ application, wherein the petitioners claim that since they were eligible on the date of inviting applications, the action of the High Court in not permitting them to appear in the interview is illegal.”
The High Court repelled the challenge holding that to permit the appellant to participate in the interview would be breaching the mandate of Art. 233(2).
“11….. Since before the date of interview, the petitioners joined the Judicial Service, the petitioners, cannot, in terms of Clause (2) of Article 233 of the Constitution, be permitted to continue with the selection process for District Judge Entry Level (Direct from Bar) as they are, now, members of the Judicial Service. Therefore, the petitioners have rightly not called for interview.”
Hence the appeal.
3. Unfortunately, it was neither argued nor did the High Court examine the true meaning and purport of Article 233(2). The appellants’ argument before the High Court appears to be that notwithstanding the fact that they are the members of the judicial service, the eligibility for competing for the post of District Judges should be considered on the basis of the facts as they existed on the “cut off date”, and the subsequent events are not be taken into consideration for determining the question whether the appellants are barred from appearing in the interview.
“…intervening fact of the petitioners joining the Judicial Service will not act as bar for their appearance in the interview.”1
1See Para 9 of the Judgment under appeal
We are afraid that the entire enquiry before the High Court was misdirected. The real question which arises in the case on hand is whether the bar under Article 233(2) is only for the appointment or even for the participation in the selection process.
4. The High Court believed in its administrative facet that Article 233(2) would not permit the participation of the appellant in the selection process because of his existing employment. The High Court came out with a ‘brilliant’ solution to the problem of the appellant i.e., the appellant may resign his membership of the subordinate judicial service if he aspires to become a district judge. But the trouble is the tantalizing caveat. If the appellant tenders resignation, he would not be permitted to withdraw the same at a later stage.
5. For any youngster the choice must appear very cruel, to give up the existing employment for the uncertain possibility of securing a better employment. If the appellant accepted the advice of the High Court but eventually failed to get selected and appointed as a District Judge, he might have to regret his choice for the rest of his life. Unless providence comes to the help of the appellant to secure better employment elsewhere or become a successful lawyer, if he chooses to practice thereafter the choice is bound to ruin the appellant. The High Court we are sure did not intend any such unwholesome consequences. The advice emanated from the High Court’s understanding of the purport of Art. 233(2). Our assay is whether the High Court’s understanding is right.
6. Article 233(1)2 stipulates that appointment of District Judges be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. However, Article 233(2)3 declares that only a person not already in the service of either the Union or of the State shall be eligible to be appointed as District Judges. The said article is couched in negative language creating a bar for the appointment of certain class of persons described therein. It does not prescribe any qualification. It only prescribes a disqualification.