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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7358  OF 2016 (Arising out of SLP (C) No. 17466 of 2016)

Vijay Kumar Mishra and Another        … Appellants

Versus

High Court of Judicature at Patna and Others        … Respondents

J U D G M E N T  

Chelameswar, J.

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.

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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 5 th 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:-

    “To,

The District & Sessions Judge Siwan

Dated, Patna the 16th February, 2016

Sir, 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.

Yours faithfully

Sd/- Registrar General

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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

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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

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.  

1

See Para 9 of the Judgment under appeal

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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 2 233 (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State

3 233(2) A person not already in the service of  the Union or  of  the State shall  only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment

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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.

7. It is well settled in service law that there is a distinction

between selection and appointment.4   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.5

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 4 (1993) Supp (3) SCC 181 at pg 190 “29. At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistments, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word "appointment" means an actual act of posting a person to a particular office.  30. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment.” 5 (1994) 1 SCC 126 at pg 129 “8. “It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. (See Shankarsan Dash v. Union of India and Sabita Prasad and Ors. v. State in Bihar and Ors”

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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.

8. 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.    

9. The respondents relied upon two judgments of this Court

in a bid to sustain the judgment under appeal, Satya Narain

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Singh  Vs.  High  Court  of  Judicature  at  Allahabad  and

Others (1985) 1 SCC 225 and Deepak Aggarwal Vs. Keshav

Kaushik and Others (2013) 5 SCC 277.

10. In  first  of  the  above-mentioned  judgments,  the

petitioners/appellants before this Court were members of the

Uttar  Pradesh  Judicial  Service.  In  response  to  an

advertisement by the High Court, they applied to be appointed

by  direct  recruitment  to  the  Uttar  Pradesh  Higher  Judicial

Service (District Judges).

It appears from the judgment  “as  there  was  a  question  about  the

eligibility of the members of the Uttar Pradesh Judicial Service to appointment by direct

recruitment  to the higher judicial  service…….”, some of them approached

the High Court by way of writ petitions which were dismissed

and therefore, they approached this Court.   It is not very clear

from  the  judgment,  as  to  how  the  question  about  their

eligibility  arose  and  at  what  stage  it  arose.    But  the  fact

remains, by virtue of an interim order of this Court, they were

allowed to appear in the examination.   The argument before

this  Court  was  that  all  the  petitioners  had  practiced  for  a

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period  of  seven  years  before  their  joining  the  subordinate

judicial  service,  and  therefore,  they  are  entitled  to  be

considered  for  appointment  as  District  Judges

notwithstanding the fact that they were already in the judicial

service.

It appears from the reading of the judgment that the case

of the petitioners was that their claims for appointment to the

post of  District Judges be considered under the category of

members of the Bar who had completed seven years of practice

ignoring the fact that they were already in the judicial service.

The  said  fact  operates  as  a  bar  undoubtedly  under  Article

233(2) for their appointment to the higher judicial service.   It

is in this context this Court rejected their claim.   The question

whether at what stage the bar comes into operation was not in

issue before the Court nor did this Court go into that question.

11. In the case of  Deepak Aggarwal  (supra), the question

before this Court was;  

“52. The question that has been raised before us is whether a Public Prosecutor/Assistant  Public  Prosecutor/District  Attorney/Assistant District  Attorney/Deputy  Advocate  General,  who  is  in  full-time

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employment of the Government, ceases to be an advocate or pleader within the meaning of Article 233(2) of the Constitution.”

On an elaborate examination of the various aspects of the

legal profession, the provisions of the Bar Council Act etc., this

Court concluded that public prosecutors etc. did not cease to

be advocates, and therefore, they could not be considered to

be in the service of the Union or the State within the meaning

of Article 232.

“101. ….In our view, none of the Attorney/Public Prosecutor/Deputy Advocate General, ceased to be “advocate” and since each one of them continued to be “advocate”, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2).   The view of the Division Bench is clearly erroneous and cannot be sustained.”

and finally held that they are not debarred under Article 233.

A judgment which has no relevance to the issue before us

12. We are  of  the  opinion  that  neither  of  the  cases  really

dealt  with  the  issue  on  hand.   Therefore,  in  our  opinion,

neither of the above two judgments is an authority governing

the issue before us.

13.  For the above-mentioned reasons, the Appeal is allowed.

Consequently, the Writ Petition (CWJC No. 3504 of 2016) filed

by  the  appellants  also  stands  allowed  directing  the

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respondents  to  permit  the  appellants  to  participate  in  the

selection process without insisting upon their resigning from

their  current  employment.   If  the  appellants  are  found

suitable,  it  is open to the appellants to resign their current

employment and opt for the post of District Judge, if they so

choose.

….………………………….J.                                                      (J. Chelameswar)

…….……………………….J.   (Abhay Manohar Sapre) New Delhi; August 9, 2016

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Reportable

IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL No.7358 OF 2016        (ARISING OUT OF SLP (C) No. 17466/2016)

Vijay Kumar Mishra and Another …….Appellant(s)

VERSUS

High Court of Judicature at Patna  & Others

……Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) I  have had the advantage of  going through the

elaborate,  well  considered  and  scholarly  draft

judgment  proposed  by  my  esteemed  Brother  Jasti

Chelameswar J. I entirely agree with the reasoning and

the conclusion, which my erudite Brother has drawn,

which are based on remarkably articulate process of

reasoning.  However,  having  regard  to  the  issues

involved, which were ably argued by learned counsel

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appearing  in  the  case,  I  wish  to  add  few  lines  of

concurrence.

2) I  need  not  set  out  the  facts,  which  are  not  in

dispute  and  set  out  in  the  order  proposed  by  my

learned Brother.

3) The  short  question,  which  arises  for

consideration in this appeal, is what is the true object,

purport and scope of Article 233 (2) of the Constitution

of India and, in particular, the words "eligible to be

appointed as district judge" occurring in the Article?

4) Chapter VI of the Constitution of India deals with

the subordinate courts in the State. Articles 233 and

236, which are part of Chapter VI, read as under:

“233.  Appointment  of  district  judges.  –  (1) Appointments  of  persons  to  be,  and  the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising  jurisdiction  in  relation  to  such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader  and  is  recommended  by  the  High Court for appointment.

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236. Interpretation. – In this Chapter- (a)  The  expression  “district  judge”  includes judge of a city civil court, additional district judge,  joint district  judge, assistant district judge,  chief  judge  of  a  small  cause  court, chief presidency magistrate, additional chief presidency  magistrate,  sessions  judge, additional  sessions  judge  and  assistant sessions judge;

(b) the expression “judicial service” means a service  consisting  exclusively  of  persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.”

5) Article 233 deals with appointment, posting and

promotion of the district judges in the State. Clause (1)

provides that appointment, posting and promotion of

the district judges in any State shall be made by the

Governor  of  the State  in consultation with the  High

Court exercising jurisdiction in relation to such State.  

6) Clause  (2)  of  Article  233  with  which  we  are

concerned here provides that a person not already in

service  of  the  Union  or  of  the  State  shall  only  be

eligible to be appointed as a district judge if  he has

been for  not  less than 7 years as an advocate  or  a

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pleader  and is  recommended by  the  High Court  for

appointment.  

7) Article 236 (a) defines the word "district judge"

occurring in Chapter VI.  

8) Reading of  clause (2)  of  Article 233 shows that

the "eligibility"  of  a person applying for  the post of

district  judge  has  to  be  seen  in  the  context  of  his

appointment.  A fortiori, the eligibility of a person as to

whether  he  is  in  the  service  of  Union  or  State  is

required to be seen at the time of his appointment for

such post and not prior to it.

9) Mr.  Ranjit  Kumar,  Solicitor  General  of  India

appearing for  the  respondent  (High Court),  however,

contended  that  the  word  "appointed”  occurring  in

Article  233(2)  of  the  Constitution  should  necessarily

include the entire selection process starting from the

date  of  submitting  an  application  by  the  person

concerned till the date of his appointment. It was his

submission that if any such person is found to be in

service of Union or State, as the case may be, on the

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date  when  he  has  applied  then  such  person  would

suffer disqualification prescribed in clause (2) of Article

233  and  would  neither  be  eligible  to  apply  nor  be

eligible for appointment to the post of district judge.

10) This  submission  though  look  attractive  is  not

acceptable.  Neither  the  text  of  Article  and  nor  the

words  occurring  in  Article  233(2)  suggest  such

interpretation. Indeed, if his argument is accepted, it

would  be  against  the  spirit  of  Article  233(2).  My

learned  Brother  for  rejecting  this  argument  has

narrated the consequences, which are likely to arise in

the event of accepting such argument and I agree with

what he has narrated.

11) In  my  view,  there  lies  a  subtle  distinction

between the words “selection" and "appointment” in

service jurisprudence.  (See :  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

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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”.

12) In my opinion,  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.

13) It  is a settled principle of  rule of  interpretation

that one must have regard to subject and the object

for which the Act is enacted. To interpret a Statue in a

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reasonable manner, the Court must place itself  in a

chair  of  reasonable  legislator/author.  So  done,  the

rules of purposive construction have to be resorted to

so that the object of the Act is fulfilled. Similarly, it is

also a recognized rule of interpretation of Statutes that

expressions  used  therein  should  ordinarily  be

understood in the sense in which they best harmonize

with the object of the Statute and which effectuate the

object  of  the  legislature.  (See-Interpretation  of

Statues  12th Edition,  pages  119  and  127  by

G.P.Singh).   The aforesaid principle, in my opinion,

equally  applies  while  interpreting  the  provisions  of

Article 233(2) of the Constitution.

14) With these few words of  mine, I  agree with the

reasoning and the conclusion arrived at by my learned

Brother.  

                                  ..……..................................J.

    [ABHAY MANOHAR SAPRE] New Delhi; August 09, 2016    

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