Abhay Manohar Sapre, J.
1) I have had the advantage of going through the elaborate, well considered and scholarly draft judgment proposed by my esteemed Brother Jasti Chelameswar J. I entirely agree with the reasoning and the conclusion, which my erudite Brother has drawn, which are based on remarkably articulate process of reasoning. However, having regard to the issues involved, which were ably argued by learned counsel 12 Page 12 appearing in the case, I wish to add few lines of concurrence.
2) I need not set out the facts, which are not in dispute and set out in the order proposed by my learned Brother.
3) The short question, which arises for consideration in this appeal, is what is the true object, purport and scope of Article 233 (2) of the Constitution of India and, in particular, the words "eligible to be appointed as district judge" occurring in the Article?
4) Chapter VI of the Constitution of India deals with the subordinate courts in the State. Articles 233 and 236, which are part of Chapter VI, read as under:
“233. Appointment of district judges. – (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
13 Page 13 236. Interpretation. – In this Chapter-
(a) The expression “district judge” includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.”
5) Article 233 deals with appointment, posting and promotion of the district judges in the State. Clause (1) provides that appointment, posting and promotion of the district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
6) Clause (2) of Article 233 with which we are concerned here provides that a person not already in service of the Union or of the State shall only be eligible to be appointed as a district judge if he has been for not less than 7 years as an advocate or a 14 Page 14 pleader and is recommended by the High Court for appointment.
7) Article 236 (a) defines the word "district judge" occurring in Chapter VI.
8) 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.
9) Mr. Ranjit Kumar, Solicitor General of India appearing for the respondent (High Court), however, contended that the word "appointed” occurring in Article 233(2) of the Constitution should necessarily include the entire selection process starting from the date of submitting an application by the person concerned till the date of his appointment. It was his submission that if any such person is found to be in service of Union or State, as the case may be, on the 15 Page 15 date when he has applied then such person would suffer disqualification prescribed in clause (2) of Article 233 and would neither be eligible to apply nor be eligible for appointment to the post of district judge.
10) This submission though look attractive is not acceptable. Neither the text of Article and nor the words occurring in Article 233(2) suggest such interpretation. Indeed, if his argument is accepted, it would be against the spirit of Article 233(2). My learned Brother for rejecting this argument has narrated the consequences, which are likely to arise in the event of accepting such argument and I agree with what he has narrated.
11) In my view, there lies a subtle distinction between the words “selection" and "appointment” in service jurisprudence. (See : Prafulla Kumar Swain vs. Prakash Chandra Misra & Ors., (1993) Supp. (3) SCC 181). 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 16 Page 16 reference to his service then it is not possible to read the word "selection" or "recruitment" in its place. In other words, the word "appointed" cannot be read to include the word "selection”, “recruitment” or “recruitment process”.
12) In my opinion, there is no bar for a person to apply for the post of district judge, if he otherwise, satisfies the qualifications prescribed for the post while remaining in service of Union/State. It is only at the time of his appointment (if occasion so arises) the question of his eligibility arises. Denying such person to apply for participating in selection process when he otherwise fulfills all conditions prescribed in the advertisement by taking recourse to clause (2) of Article 233 would, in my opinion, amount to violating his right guaranteed under Articles 14 and 16 of the Constitution of India.
13) It is a settled principle of rule of interpretation that one must have regard to subject and the object for which the Act is enacted. To interpret a Statue in a 17 Page 17 reasonable manner, the Court must place itself in a chair of reasonable legislator/author. So done, the rules of purposive construction have to be resorted to so that the object of the Act is fulfilled. Similarly, it is also a recognized rule of interpretation of Statutes that expressions used therein should ordinarily be understood in the sense in which they best harmonize with the object of the Statute and which effectuate the object of the legislature. (See-Interpretation of Statues 12th Edition, pages 119 and 127 by G.P.Singh). The aforesaid principle, in my opinion, equally applies while interpreting the provisions of Article 233(2) of the Constitution.
14) With these few words of mine, I agree with the reasoning and the conclusion arrived at by my learned Brother.
New Delhi; August 09, 2016 . J.
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