Subordinate judges need not resign to appear for District judge selection, Supreme Court

In a significant judgment involving interpretation of Article 233(2), the Supreme Court held that judges in subordinate judicial service cannot be asked to resign to appear for District judge selection process..The judgment was delivered by a Bench comprising Justices Jasti Chelameswar and AM Sapre in an appeal against a judgment of the Patna High Court. Justice Sapre wrote a separate concurring judgment..By way of background, the appellants, who were advocates, had applied for the post of District Judge, Entry level. They wrote both the prelims and mains exam. Meanwhile, they also qualified for subordinate judicial service and joined the same..Subsequently, the results of the Mains exam for District judge were published and they qualified. They got the interview call letter for the same but one of the conditions to appear for the interview was a ‘No-objection certificate from the current Employer’..The petitioner, therefore, applied to the Registrar General of Patna High Court, who rejected the same citing Article 233(2). The Registrar General said that they could attend the interview only if they resign from the current post..The petitioners then filed a writ petition before the High Court which was also rejected prompting the appeal to the Supreme Court..The Court framed the following question for consideration:.“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.”.It termed that the High Court’s direction to the appellants to resign from the current job to appear for the interview as a “cruel choice”. It also took a dig at the High court calling it a “brilliant solution to the problem”..“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..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.”.It then proceed to interpret article 233(2). 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 court first interpreted the 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 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.”.It then laid down the interpretation of Article 233(2)..“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.”.The court, therefore, allowed the appeals and directed the High Court to permit the appellants to participate in the selection process without insisting upon their resigning from their current employment..Read the judgment below.