Wednesday, 10 August 2016

Whether person in govt/judicial service should resign to participate in District judge selection process?

“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.
  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.
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

   Dated:August 9, 2016                    
Chelameswar, J.
Citation:(2016) 9 SCC313


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
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