Supreme Court Allows Subordinate Judges to Apply for District Judge Posts Without Resigning

The case of Vijay Kumar Mishra & Another v. High Court of Judicature at Patna & Others revolved around the eligibility of judicial officers in the subordinate judiciary to apply for direct recruitment as District Judges without resigning from their existing posts. The Supreme Court, in its judgment dated August 9, 2016, ruled that Article 233(2) of the Constitution does not bar such candidates from participating in the selection process, provided they resign only upon appointment.

Background of the Case

The appellants, Vijay Kumar Mishra and another, were judicial officers serving in the Subordinate Judicial Service of Bihar. They had applied for direct recruitment to the post of District Judge (Entry Level) pursuant to Advertisement No. 01/2015 issued by the Patna High Court. The cutoff date for eligibility was February 5, 2015. The appellants cleared the Preliminary and Mains Examination.

Meanwhile, in August 2015, they were selected and joined as Civil Judges (Junior Division) in Bihar’s Subordinate Judicial Service. When the result of the Mains Examination for the District Judge post was declared on January 22, 2016, the appellants qualified. However, the Patna High Court imposed a condition in the interview call letter that required them to submit a ‘No Objection Certificate (NOC) from the Employer’ before appearing in the interview.

The appellants’ request to the High Court for an exemption from this requirement was denied, citing Article 233(2) of the Constitution. They were told they would have to resign before participating in the interview. They challenged this decision before the Supreme Court.

Legal Issues

The Supreme Court had to determine:

• Whether Article 233(2) of the Constitution prohibits a judicial officer from applying for direct recruitment as a District Judge.
• Whether the Patna High Court could require the appellants to resign from their current judicial posts before appearing for the interview.
• Whether the constitutional bar in Article 233(2) applies at the stage of selection or only at the time of appointment.

Petitioner’s Arguments (Vijay Kumar Mishra & Another)

The petitioners argued:

• They were eligible on the cutoff date (February 5, 2015), and their subsequent selection into the subordinate judiciary should not affect their eligibility.
• The constitutional bar under Article 233(2) applies only at the time of appointment and not at the stage of selection.
• Forcing them to resign before appearing in the interview created an unnecessary risk, as they would lose their jobs even if they were not ultimately selected.
• The High Court’s decision was arbitrary and placed an unfair burden on judicial officers seeking career advancement.

Respondent’s Arguments (High Court of Judicature at Patna)

The High Court contended:

• Article 233(2) creates a categorical bar on appointing persons in government service as District Judges through direct recruitment.
• The requirement for judicial officers to resign before participating in the interview was to ensure compliance with this constitutional provision.
• Allowing judicial officers to remain in service while applying for District Judge posts would dilute the intent of the constitutional provision.

Supreme Court’s Observations and Ruling

1. The Bar in Article 233(2) Applies Only at the Time of Appointment

The Court clarified that Article 233(2) states that “a person not already in the service of the Union or the State shall only be eligible to be appointed a district judge.” This means that the restriction applies only at the time of appointment, not during the selection process.

“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.”

The Court emphasized that the provision does not bar a person from participating in the selection process while still in service.

2. Selection and Appointment Are Different Processes

The Court made a distinction between selection and appointment:

“It is well settled in service law that there is a distinction between selection and appointment. Every person who is successful in the selection process does not acquire any right to be appointed automatically.”

Thus, the High Court’s decision to bar the appellants from the interview stage was based on a misinterpretation of the Constitution.

3. Requiring Resignation Before Selection is Unfair

The Supreme Court strongly criticized the condition requiring candidates to resign before appearing for the interview:

“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.”

The Court held that such an approach was unfair and placed an unreasonable burden on candidates.

4. The High Court’s Decision Was Misguided

The Court found that the High Court had erred in its interpretation:

“The High Court’s understanding of the purport of Article 233(2) was incorrect. A person who is in the service of either the Union or the State would still have the option, if selected, to resign before joining as a District Judge.”

The Court ruled that forcing candidates to resign before even appearing for an interview was unnecessary and unconstitutional.

Final Verdict

The Supreme Court allowed the appeal and ruled:

• The High Court’s decision barring the appellants from the interview was set aside.
• The appellants must be permitted to participate in the selection process without resigning.
• If selected, they must resign before taking up the appointment as District Judge.
• The High Court must implement the judgment within a reasonable timeframe.

Key Takeaways

• Article 233(2) only prohibits the appointment of a person in service as a District Judge, not their participation in the selection process.
• Selection and appointment are distinct processes in service law.
• Requiring candidates to resign before selection is unfair and unreasonable.
• Judicial officers can apply for direct recruitment to the post of District Judge without resigning first.

Impact of the Judgment

The ruling had significant implications for judicial recruitment:

• It clarified the interpretation of Article 233(2) of the Constitution.
• It ensured that judicial officers seeking promotion through direct recruitment are not unfairly penalized.
• It upheld the principle that service law should be applied in a fair and reasonable manner.

In conclusion, the Supreme Court’s decision in Vijay Kumar Mishra v. High Court of Patna reinforced the principle that judicial officers should not be forced to resign before participating in selection processes, ensuring a fairer and more just approach to judicial appointments.

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