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SUPREME COURT OF INDIA
J. CHELAMESWAR, ABHAY MANOHAR SAPRE, JJ.
Vijay Kumar Mishra and Another – Appellants
Versus
High Court of Judicature at Patna and Others – Respondents
CIVIL APPEAL NO.7358 OF 2016
(Arising out of SLP (C) No. 17466 of 2016)
Decided On : 09-08-2016
(a) Service law – Recruitment and appointment – Recruitment connotes pre-appointment processes viz. enlistment, acceptance, selection or approval for appointment – It is not appointment – Appointment on the other hand, is actual act of posting a person to a particular office – Selection does not create a right for appointment. (Para 7)
(1993) Supp (3) SCC 181; (1994) 1 SCC 126 – Relied upon
(b) Constitution of India – Article 233(2) – Bars only appointment of a person as a District Judge, if already in the service of either the Union or the State – Compelling a person to resign his service even for selection for the post of District Judge – Not permitted. (Para 8)
(1985) 1 SCC 225; (2013) 5 SCC 277 – Distinguished
Per Abhay Manohar Sapre, J. (Concurring)
(c) Constitution of India – Article 233(2) – "Eligible to be appointed as district judge" – Selection and appointment – Distinction – Word "appointed" cannot be read to include the word "selection”, “recruitment” or “recruitment process” – Question of eligibility for the post of District Judge arises only at the time of appointment – Denying opportunity to apply for selection to a person in employment – Amounts to violating Article 14 and 16 of then Constitution of India. (Para 11, 12)
(1993) Supp. (3) SCC 181 – Relied upon
(d) Interpretation – Article 233(2) – In statutory interpretation regard must be had to the subject and the object of the Act – Rules of purposive construction have to be resorted to – Expressions used should be understood in the sense in which they best harmonize with the object of the Statute and which effectuate the object of the legislature – This principle equally applies in interpreting Article 233(2). (Para 13)
Facts of the case:
The true purport of Art. 233(2) of the Constitution of India is the issue in this appeal.
An Advertisement 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 detail of interview schedule were published and Call Letters for the interview to both the petitioners were issued; 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. 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.
The High Court repelled the challenge to this communication holding that to permit the appellant to participate in the interview would be breaching the mandate of Art. 233(2).
Finding of the Court:
Proceeding before the High Court was misdirected.
Result: Appeal allowed.
JUDGMENT :
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.
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 5th 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
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 t
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