VIJAY KUMAR MISHRA AND ANR. versus HIGH COURT OF JUDICATURE AT PATNA AND ORS.

Citation: [2016] 3 S.C.R. 806 · Decided: 09-08-2016 · Supreme Court of India · Bench: JASTI CHELAMESWAR · Disposal: Appeal(s) allowed
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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 
806 
VIJAY KUMAR MISHRA v. HIGH COURT OF JUDICATURE AT 
807 
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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SUPREME COURT REPORTS 
(2016) 3 S.C.R. 
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2. There lies a subtle distinction between the words 
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