ABHAY MANOHAR SAPRE, J. - (1.) Leave granted.
(2.) To explore the true purport of Art. 233(2) of the Constitution of India is the task of this Court in this appeal. The facts of the case are very elegantly narrated in the first six paragraphs of the judgment under appeal. They are: "The challenge in the present writ application is to the communication, dated 16th of February, 2016, whereby representation of the petitioners to appear in interview for the post of District Judge Entry Level (Direct from Bar) Examination, 2015, was rejected and a condition was imposed that petitioners will have to tender their rejection, first, from the Subordinate Judicial Service of the State of Bihar and only, thereafter, they could appear in the interview. 2. An Advertisement No. 01/2015 was issued inviting applications from eligible Advocates for direct recruitment in respect of 99 vacancies as on 31st of March, 2015. The cut off date for the eligibility was 5 th of February, 2015. The petitioners appeared in the Preliminary as well as in the Mains Examination pursuant to such advertisement. 3. In the meantime, petitioners qualified for the Subordinate Judicial Service of the State of Bihar in 28th Batch. The petitioners accordingly joined the Subordinate Judicial Service of the State of Bihar in August, 2015. 4. The result of the Mains Examination of the District Judge Entry Level (Direct from Bar) was published on 22 nd of January, 2016. Both the petitioners qualified in the Mains Examination. 5. The High Court published the detail of interview schedule and issued Call Letters for the interview to both the petitioners; but one of the conditions in the Interview Letter was 'No -Objection Certificate of the Employer'. Therefore, the petitioners filed their representation before the Registrar General, Patna High Court, Patna, to appear in the interview. The requests were declined on 16th of February, 2016. The communication to one of the petitioners reads as under: - JUDGEMENT_12_LAWS(SC)8_2016.htm 6. It is the said letter, which is subject matter of challenge in the present writ application, wherein the petitioners claim that since they were eligible on the date of inviting applications, the action of the High Court in not permitting them to appear in the interview is illegal." The High Court repelled the challenge holding that to permit the appellant to participate in the interview would be breaching the mandate of Art. 233(2). "11..... Since before the date of interview, the petitioners joined the Judicial Service, the petitioners, cannot, in terms of Clause (2) of Article 233 of the Constitution, be permitted to continue with the selection process for District Judge Entry Level (Direct from Bar) as they are, now, members of the Judicial Service. Therefore, the petitioners have rightly not called for interview." Hence the appeal.
(3.) Unfortunately, it was neither argued nor did the High Court examine the true meaning and purport of Article 233(2). The appellants' argument before the High Court appears to be that notwithstanding the fact that they are the members of the judicial service, the eligibility for competing for the post of District Judges should be considered on the basis of the facts as they existed on the "cut off date", and the subsequent events are not be taken into consideration for determining the question whether the appellants are barred from appearing in the interview. "...intervening fact of the petitioners joining the Judicial Service will not act as bar for their appearance in the interview."See Para 9 of the Judgment under appeal We are afraid that the entire enquiry before the High Court was misdirected. The real question which arises in the case on hand is whether the bar under Article 233(2) is only for the appointment or even for the participation in the selection process. ;