VIJAY KUMAR MISHRA AND ANR. versus HIGH COURT OF JUDICATURE AT PATNA AND ORS.
[2016] 3 S.C.R. 806, Supreme Court of India, 2016
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2016J 3 S.C.R. 806 
VIJAY KUMAR MISHRA AND ANR. 
v. 
HIGH COURT OF JUDICATURE AT PATNA AND ORS. 
(Civil Appeal No. 7358of2016) 
AUGUST 09, 2016 
[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.] 
Conslilulirm of India - Ari. 233(2) · · Meaning and p11rpor1 of 
- Appoinlmenl <!( Dislricl .Judges 
Bar 011 appoint111en1 of certain 
elms o/ perso11.1 
IY!il'!ha oper11ll'.1· 011/y .f;;r appoint111e/l/ or even 
fi1r parlicipution i11 the si.:lecrio11 process ·-Appellants alreal~J' in 
the Stale Subordinate .Judicial Service qualified in !he \l'riuen 
examination for !he post <!(District .Judge - Howeve1; were denied 
permission fo appear in the inter\'iell', 011 ground of bar u,~4rl. 233(2), 
as !hey ll'ere already in the service of the Slate - As a conditio11 fo 
appear i11 the inten•ie11· were asked fo firs/ resign ji-0111 !he curre11t 
employment in subordi11are judidar)' - Held: There is a distinction 
between selection and appointmenl - Ari. 233(2) only prohibits the 
appoi111111e11t of a person already in the service of the Union or 
S!a/e but not the selection/consideration 11( the candidature <!(such 
a person in the selection process - Such a person has a right u/Art. 
I./ & 16 lo parlicipate and he considered in the seleclion process 
undertaken by the Stare fin· appointment ro any post in public service 
- Compel! ing a persim to resign his joh even j(Jr the purpuse <!f 
assessing his s11irahili~vfiJr appointment nor permitted by the reit uf 
Arr.
233(2) 
Direction ro Respo11denfs permit appellanls to 
participale in the selec1ion process without insisting upon their 
resignation fiwn current employmelll - Service law. 
Constitution of India: Articles I./ and 16 - Right to parlicipate 
and be considered in the selection process - Discussed. 
Service Law - Seleclion and appointment -- Distinction between 
- Discussed·- 1!.l'err ;;erson ffho is succi.:ssfit! in the sdection 1;rocess 
111ulerrulw11 hr Stute }Ji· the 11111·;;ose o/)il/ing 1111 o/ ccrlai11 posls 
does not uc1111ire any right to he appoinfl.!d a111m1wtically. 
Allowing the appeal, the Court 
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VIJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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PATNA 
HELD: Per J. Chelameswar, J.: 
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1.1. Article 233(2) of the Constitution declares that only a 
person not already in the service of either the Union or the State 
shall be eligible to be appointed as District Judges. The Article 
is couched in negative language creating a bar for appointment 
of certain class of persons described therein. It does not prescribe 
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any qualification. It only prescribes a disqualification. [Para 6) 
[812-A-B] 
1.2. 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 State for the 
purpose of filling up of certain posts under the State does not 
acquire any right to be appointed automatically. Article 233(2) 
only prohibits the appointment of a person 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 and be considered is guaranteed under Arts. 14 & 16. 
(Para 7) (812-C-D) 
1.3. Article 233(2) does not prohibit the consideration of the 
candidature of a person already in the service of Union or State. 
The person 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 not penniltcd by the text of Art. 233 (2). (Para 81 (812-E; 
813-A-Bf 
2. Respondents to permit the appellants to participate in 
the selection prnccss without insisting upon their resigning from 
their current employment. (Para 13) (814-l•'-G) 
Per Abhay M:rnohar Sapre, .J.: (Concurring) 
HELD: 1. 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. (Para 8) (818-DJ 
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(2016) 3 S.C.R. 
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2. There lies a subtle distinction between the words 
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"selection" and "appointment" in service jurisprudence. [Para 
11) [816-G-H) 
Prafulla Kumar Swain v. Prakash Chandra Misra & 
Ors. (1993) Supp. (3) SCC 181: 1993 (1) SCR 241 -
referred to. 
3. It is not possible to read the word "selection" or 
"recruitment" in place of "appointed" when the framers of the 
Constitution have used this word for determining the eligibility 
of a person with reference to his service. ID other words, the 
word "appointed" cannot be read to include the word "selection", 
"recruitment" or "recruitment process". [Para 11) (817-A) 
4. There is no bar for a person to apply for the post of District 
Judge, if he othenvise, satisfies the qualifications prescribed for 
the post while remaining in service of Union/State. It is only at 
the time of his appointment 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 amount to violating his right guaranteed under At1icles 14 
and 16 of the Constitution of lndia.[Para 12) [817-B-C) 
Case Law Reference 
In the judgment of J. Chelameswar, J.: 
1985 (2) SCR 112 
2013 (1) SCR 402 
distinguished 
distinguished 
Para 10 
Para 11 
In the judgment of Abbay Manohar Sapre, J.: 
19~3. (1) SCR 241 
referred to 
Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7358 
of2016. 
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From the Judgment and Order dated 12.05.2016 of the High Court 
of Judicature at Patna in Civil Writ Jurisdiction Case No. 3504 of2016. 
Ranjan Kumar. Sanjay Kumar, Shailya Balasariya, Advs. for the 
Appellants. 
Ranjeet Kumar, S. G., Pravin H. Parekh, Sr. Adv., Kshatrshalraj, 
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Ms. Ritika Sethi, Abhishek Vinod Deshmukh (For M/s. Parekh & Co.),
VIJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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PATNA [J. CHELAMESWAR, J.] 
Advs. for the Respondents. 
The Judgment of the Court was delivered by 
J .. CHELAMESWAR, J. I. Leave granted. 
2. To explore the true purport of Art. 233(2) of the Constitution of 
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India is the task of this Court in this appeal. The facts of the case are 
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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 16'" of February, 2016, whereby 
representation of the petitioners to appear in interview for the c 
post ofDistrict Judge Entry Level (Direct from Bar) Examination, 
2015, was rejected and a condition was imposed that petitioners 
will have to tendertheir rejection, first, from the Subordinate Judicial 
Service of the State ofBihar and only, thereafter, they could appear 
in the interview. 
2. An Advertisement No. 0I/2015 was issued inviting applications 
from eligible Advocates for direct recruitment in respect of 99 
vacancies as on 31" of March, 2015. 
The cut off date for the 
~ligibility was 5'" of February, 2015. The petitioners appeared in 
the Preliminary as well as in the Mains Examination pursuant to 
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such advertisement. 
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3. In the meantime, petitioners qualified for the Subordinate Judicial 
Service of the State of Bihar in 28'" 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 22"d 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 
I 61h of February, 2016. The communication to one of the petitioners 
reads as under:-
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"To, 
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Sir, 
The District & Sessions Judge 
Siwan 
Dated, Patna the I 61h February, 20 I 6 
With reference to your letter no. 80 dated 05.02.20 I 6, I am 
directed to say that the Court have been pleased to reject the 
representation dated 05.02.20 I 6 of Sri Yijay 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, 20 I 5, 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 
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in the present writ application, wherein the petitioners clai111 
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 per111it the 
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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 
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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 
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examine the true meaning and purport of Article 233(2). The appellants'
VJJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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PATNA [J. CHELAMESWAR, J.] 
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."' 
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 
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the bar under Article 233(2) is only for the appointment or even for the 
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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 
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may resign his membership of the subordinate judicial service ifhe 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 
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the existing employment forthe uncerlain 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 
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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 A11. 233(2). Our assay 
is whether the High Court's understanding is right. 
6. A11icle 233( I)' stipulates that appointment of District Judges be 
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1 See Para 9 of the Judgment under appeal 
2 233 (I) Appointments of persons to be. and the posting and promotion ot: district 
judges in any State shall be made by the Governor of the State in consultation with the 
High Court exercisingjurisdiction in relation to such State 
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made by the Governor of the State in consultation with the High Court 
exercisingjurisdiction in relation to such State. However, Article 233(2)' 
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 i's 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. 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 io participate 
. in the selection process undertaken by the State for appointment to any 
post in public s,ervice (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 prohib_it 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 
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. 
' ( 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 "recruitmenr· and ··app.ointment". The term 
"recruitment"' connotes and clearly signifies enlistments, acceptance, selection or 
approval for appointment. Certainly, this is 11ot actual appointment or posting in 
service. In contradistinction !he 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 ih the service. But, that cannot tantamount to an appointment." 
'(1994) I 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 cjoes not amount to selection or create a vested right to
be 
appointed unless relevant service rule says' to the contrary. (See Shankarsan Dash r. 
L'nion of India and Sabira Prasad and Ors. v. Si ale in Bilwr and Ors.··
VIJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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PATNA (J. CHELAMESWAR, J.] 
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 t<isustain the judgment under appeal, Satya Narain Singh Vs. High 
Co11rt of J11dicatw:e at Allahabad and Others ( 1985) 1 SCC 225 and 
Deepak Aggarwal Vs. Keshav Kaushik and Others (2013) 5 SCC 
277. 
I 0. 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 
intedm orderofthis 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 A1ticle 233(2) fortheir appointment to the higl1erjudicial 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. 
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11.ln the case of Deep(lk Agg(ITW(lf (supra), the question before 
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this Court was; 
"52. T!Je 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. 
"IOI. ... .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 he 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 of2016) 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. 
ABHAY MANOHAR SAPRE, J . 
. 
I. 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
VJJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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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 le(lmed 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 jndges 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 ~ 
district Judge if he has been for not less than seve~ 
years an advocate or a pleader and.is recommended 
'by the High Coµrt for appointment. 
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236. lnterpret"tion. - 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, s~ssions 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 
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district judges in the State. Clause (I) 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 adistrictjudge ifhe 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. 
I 0. 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 t!1e consequences, which are likely to arise in the eyent 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
VIJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
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PATNA [ABHAY MANOHAR SAPRE, J.] 
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 (ifoccasion so arises)the question of his eligibility 
arises. Denying such person to apply for participating in selection process 
when he otlierwise fol fills 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 oflndia. 
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/authpr. 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 
121• 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. 
l4. With these few words of mine, I agree with the reasoning.and 
the conclusion arrived at by my learned Brother. 
Divya Pandey 
Appeal allowed. 
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