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”
-----------------------
18
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
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[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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