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VIJAY KUMAR MISHRA AND ANR vs.

HIGH COURT OF JUDICATURE AT


PATNA TO AND ORS

(CIVIL APPEAL NO.7358 OF 2016)

PETITIONER: VIJAY KUMAR MISHRA AND ANR Vs.

RESPONDENT: HIGH COURT OF JUDICATURE AT PATNA TO AND ORS

DATE OF JUDGMENT: 9/08/2016

BENCH: J. CHELAMESHWAR, ABAY MANOHAR SAPRE

BRIEF FACTS OF THE CASE

Whether a person in Judicial or Government Service, can participate in District Judge selection
process or he has to resign his job before applying for it? This interesting question which required
interpretation of Article 233 of the Constitution of India came up before a Bench of Apex Court
comprising of Justices J Chelameswar and Abhay Manohar Sapre.

The Apex Court has held that Article 233(2) of the Constitution of India only prohibits the
appointment of a person as District Judge, who is already in the service of the Union or the State,
but not the selection of such a person. The Court has set aside the Patna High Court judgment
which had required the aspirant to resign his membership of the subordinate judicial service if he
aspires to become a District judge.

The Court has also directed to permit the aspirants to participate in the selection process without
insisting upon their resigning from their current employment and held that if they are found
suitable, it is open for them to resign their current employment and held that if they are found
suitable, it is open for them to resign their current employment and opt for the post of District
Judge, if they so choose.

BACKGROUND OF THE CASE

Vijay Kumar Mishra, a Probationary Civil Judge, had applied for the post of District Judgeship
but his representation before Registrar General, 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
he will have to tender their rejection, first, from the Subordinate Judicial Service of the State of
Bihar and only, thereafter, he could appear in the interview. His challenge against this stand
adopted by Registrar, did not stand before the High Court.

SELECTION AND APPOINTMENT DISTINCT

Justice Chelameswar observed: “it is well settled in service law that there is a distinction between
selection and appointment. Every person who is successful in the selection process undertaken by
the State for the purpose of filling up of certain posts under the State does not acquire any right to
be appointed automatically. Textually, Article 233(2) only prohibits the appointment of a person
who is already in the service of the Union or the State, but not the selection of such a person. The
right of such a person to participate in the selection process undertaken by the State for
appointment to any post in public service (subject to other rational prescriptions regarding the
eligibility for participating in the selection process such as age, educational qualification etc.) and
be considered is guaranteed under Art. 14 and 16 of the Constitution.

Justice A.M. Sapre in his separate but concurring Judgment said: “there lies a subtle distinction
between the words “selection” and “appointment” in service jurisprudence. (Prafulla Kumar
Swain vs. Prakash Chandra Misra & Ors., (1993) Supp. (3) SCC 181). When the framers of the
Constitution have used the word “appointed” in clause (2) of Article 233 for determining the
eligibility of a person with reference to his service then it is not possible to read the word
“selection” or “recruitment” in its place. In other words, the word “appointed” cannot be read to
include the word “selection”, “recruitment” or “recruitment process”

NO PROHIBITION IN CONSIDERATION OF CANDIDATURE OF A PERSON IN


GOVT. SERVICE

Justice Chelameswar added: “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, in our opinion, 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”

CRUEL TO ASK TO GIVE UP EXISTING JOB FOR UNCERTAIN FUTURE


EMPLOYMENT

Setting aside the Judgment of High Court which required the aspirant to resign his job, Justice
Chelameswar observed: “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.”

DENYING A PERSON IN GOVT SERVICE TO PARTICIPATE IN DJ SELECTION


PROCESS VIOLATIVE OF ARTICLE 14

Justice A.M. Sapre, said: “There is no bar for a person to apply for the post of district judge, if he
otherwise, satisfies the qualifications prescribed for the post while remaining in service of
Union/State. It is only at the time of his appointment (if occasion so arises) the question of his
eligibility arises. Denying such person to apply for participating in selection process when he
otherwise fulfills all conditions prescribed in the advertisement by taking recourse to clause (2) of
Article 233 would, in my opinion, amount to violating his right guaranteed under Articles 14 and
16 of the Constitution of India.”