Judges don’t have to resign for tests

In a ruling which will benefit a large number of lower-level judicial officers, the Supreme Court has held that they need not resign from government service to apply or attend the entrance test for higher-level district judges selection.

A bench of Justices J. Chelameswar and A.M. Sapre held that Article 233(2) of the Constitution only prohibits the appointment of a person as district judge, who is already in the service of the Union or the state, but not the selection of such a person. Both the judges gave separate but concurring judgments.

Justice Chelameswar said “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.”

He said the right of such a person to participate in the selection process for appointment to any post in public service, and be considered, is guaranteed under Articles 14 and 16 of the Constitution.

Justice Sapre, in his judgment, said: “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 (if the occasion so arises) 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 Articles 14 and 16 of the Constitution.”

In this case, Vijay Kumar Mishra, a probationary civil judge, had applied for the post of district judge, but his representation before the registrar-general of the Patna high court to appear in interview for the post was rejected and a condition was imposed that he will have to tender their rejection, first, from the subordinate judicial service of the state of Bihar and only, thereafter, could he appear for the interview. The high court rejected his contention that he should be allowed to participate in the interview and selection process and the present appeal is directed against this judgment.

The bench set aside the high court judgment and directed the high court to permit the aspirants to participate in the selection process without insisting upon their resigning from their current employment and held that if they are found suitable, it is open for them to resign their current employment and opt for the post of district judge if they so desire.