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Thursday, August 11, 2016

“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. 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.= lies a subtle distinction between the words “selection" and "appointment” in service jurisprudence= 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. 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 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.

                                                                  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.

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.

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.
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.
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

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]

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.

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  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  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  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  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  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

                                                                  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 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.



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 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 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
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 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
-----------------------
[1]
       See Para 9 of the Judgment under appeal
[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

[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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