25/04/2017
Sitting Magistrates and Civil Judges can compete for Higher Judiciary while in Service, says SC, Read Judgment.
A Probationary Civil Judge, Sh. Vijay Kumar Mishra had applied for the post of District Judgeship in Bihar. However his representation before Registrar General, seeking permission to appear in interview for District Judge Direct from Bar Examination, 2015, was rejected.
Also he was imposed a condition that in case he wish to compete for Higher Judiciary then he will have to tender his resignation from the Subordinate Judicial Service of the State of Bihar first and only, thereafter, he would be allowed to appear in the interview.
Patna High Court dismissed his challenge against the order of Registrar.
Issue raised before the SC is whether a person serving in Judicial or Government Service, can participate in selection process of District Judge without resigning from his job.
Bench of Apex Court comprising of Justices J Chelameswar and Abhay Manohar Sapre dealt with the question requiring interpretation of Article 233 of the Constitution of India.
The Bench held that Article 233(2) of the Constitution of India only prohibits the”Appointment” of a person as District Judge, who is in the service of the Union or the State, but not the mere ”Selection” of such a person/Govt. Servant.
The Court disagreed with the Patna High Court judgment which required the Appellant to resign from the subordinate judicial service if he wish to become a District judge.
The Apex Court directed Registrar of High Court to permit the Appellant to participate in the HJS selection process without insisting upon his resignation from their current employment.
It was ordered that if they are found suitable, it will be open for them to resign their current assignment and opt for the post of District Judge.
