Bar under Article 233(2) of the Constitution only applies to ‘appointment’ and not to participation in ‘selection’ process

Supreme Court: Exploring the true purport of Art. 233(2) of the Constitution of India where the question to be decided was that whether the bar under Article 233(2) is only for the appointment or even for the participation in the selection process, the bench of J. Chelameswar and Abhay Manohar Sapre, JJ held that when the framers of the Constitution have used the word “appointed” in clause (2) of Article 233 for determining the eligibility of a person with reference to his service then it is not possible to read the word “selection” or “recruitment” in its place.

Article 233(1)2 stipulates that appointment of District Judges be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. However, 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. Stating that there lies a subtle distinction between the words “selection” and “appointment” in service jurisprudence, the Court held that 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 was further explained that 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 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. [Vijay Kumar Mishra v. High Court of Judicature at Patna, 2016 SCC OnLine SC 802, decided on 09.08.2016]

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