can a public prosecutor appear in higher judiciary exams

Baldev Singh (Querist) 01 March 2011 This query is : Resolved
Public prosecutor being already in the service of the Union of the cannot appear in higher judiciary examination. Article 233 of the Constitution of India deals with the appointment of District Judge (Higher Judiciary) . Article 233 having two parts:
233(1) which deals with appointment of district judges’ form service and service means judicial service. 233(2) deals with recruitment of District judges from the eligible advocates. Article 233(2) of the Constitution reads as under:
“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 to pleader and recommended by high court for appointment”
As per Article 233(2) of the Constitution of India, there are three essential conditions for appointment to the post of District Judges are:
a) A person who is not in any service whether under Union or States;
b) A practising advocate/pleader for at least 7 years; and
c) Last requirement is recommendation of the High Court.
If any of the essential component contemplated by the Constitutional provision, wanting, he is ineligible.
Therefore public prosecutors/Assistant Public Prosecutors or any person who is already in service of the Union or the States shall not be eligible for the post of District Judge. Article 233 (2) with all its vitality, versatile and rigour prohibits a member of service to seek appointment to the office of District/Additional District Judge.
1. .Keshav Kaushik versus State of Haryana CWP No. 9157 of 2008 Decided on 18.05.2010 Punjab and Haryana High Court D. B. Reported as 2010 (3) SCT 245
2. K.R. Biju Babu V/s High Court Kerela 2008 Labour and industrial cases 1784 ( Kerela)
3. Mallaraddi H. Itagi V/s High Court of Karnataka 2002 Lab. I C. 2074 ( Knt.)

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Guest (Expert) 01 March 2011
What, if the public prosecutor resigns or take a voluntary retirement and take up private practice and then appear for the higher judiciary exams?

Baldev Singh (Querist) 01 March 2011
If a public prosecutor resigns or take voluntary retirement and take up private practice , he can appear in higher judiciary exams , Provided that he has completed 7 years practice at bar , and he otherwise eligible with regard to age and other qualification prescribed in higher judicial service rules in that particular state.

Guest (Expert) 02 March 2011
Nice of you for the clarification.

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