With Respect, Constitutionally Incorrect, Justice Chelameswar

“Textually, Article 233(2) only prohibits the appointment of a person who is already in the service of Union or State, but not the selection of such a person. The right of such a person to participate in the selection process undertaken by State for appointment to any post in public service (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.”

Hon’ble Justice Jasti Chelameswar, Vijay Kumar Mishra, (2016) 9 SCC 313.

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The observation in Vijay Kumar Mishra, (2016) 9 SCC 313 is not correct.

With respect, the distinction sought to be made, between ‘selection’ and ‘appointment’ in the context of eligibility, is without foundation. The observation that the right to participate in the selection process, without possessing the prescribed eligibility conditions, is guaranteed, is not correct. The right is guaranteed only if the candidate concerned fulfills the requisite eligibility criteria, on the stipulated date.

As a result of the above discussion, it is held that Vijay Kumar Mishra, to the extent that it is contrary to Ashok Kumar Sharma, (1997) 4 SCC 18 as regards participation in the selection process, of candidates who are members of the judicial service, for appointment to the post of District Judge, from amongst the quota earmarked for Advocates with seven years’ practice, was wrongly decided. To that extent, Vijay Kumar Mishra is hereby overruled.

Hon’ble Justice S. Ravindra Bhat, Dheeraj Mor v. Hon’ble High Court of Delhi, [Civil Appeal No. 1698 of 2020].

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