Vijay Kumar Mishra & Anr. v. High Court of Judicature at Patna & Ors.
Background
Two advocates applied for direct recruitment to the post of District Judge in Bihar, but before their interview, they were selected and joined the Bihar Subordinate Judicial Service. The Patna High Court refused to let them appear for the District Judge interview, holding that Article 233(2) of the Constitution, which bars appointing a person "already in the service of the Union or the State" as a District Judge, disqualified them once they had joined judicial service, even though they were eligible advocates on the cut-off date. The High Court suggested they could resign first, but told them that resignation, once tendered, could not be withdrawn.
Decision Breakdown
The Supreme Court held that Article 233(2) is a bar only on appointment, not on participation in the selection process: it distinguished "selection" from "appointment" in service law. A person already in judicial service can still apply and sit for the interview; only at the actual moment of appointment does the bar bite, giving the candidate the choice then to resign and join as District Judge or stay in their current post. Forcing candidates to resign upfront, with no option to reconsider, was held to violate Articles 14 and 16 (equality and equal opportunity in public employment). The Court distinguished two prior precedents relied on by the High Court as not actually governing this issue. The appeal was allowed, and the High Court was directed to let the appellants participate in the selection process without first resigning.
Lesson Learnt
Being asked to give up your current government job merely to compete for a different one, before you even know if you'll get it, is not something the Constitution requires; you can apply and interview while still employed, and the irreversible choice (resign or stay) only has to be made if and when you are actually selected and appointed.