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PETITIONER: GOVERNMENT OF ANDHRA PRADESH ETC.  ETC.

       Vs.

RESPONDENT: P.   DILIP KUMAR AND ANR.  ETC.  ETC.

DATE OF JUDGMENT03/02/1993

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1993 SCR  (1) 435        1993 SCC  (2) 310  JT 1993 (2)   138        1993 SCALE  (1)245

ACT: Andhra    Pradesh    Engineering    Service    Rules    1966 --Rule-4-Recruitment to various posts in the cadre of Deputy Executive Engineers in different services-Preference to Post Graduates-Validity of recruitment.

HEADNOTE: The Andhra Pradesh Public Service Commission (in short  PSC) Invited  applications for vacancies in the cadre  of  Deputy Executive  Engineers in different services, to be filled  by direct recruitment.  Pursuant to the said advertisement both graduates  and  post graduates applied, for, the  posts  and were  subjected to a written test and those  who  qualifying marks, were called for oral test/interview. The PSC on an Interpretation of Rule 4 of the A.P. Engineers Service  Rules and following the decision of the High  Court of  A.P.  in  Writ  petition No. 2568  of  1982  decided  by Wagner, J. on March 14, 1986 treated the Post Graduates as a class and gave them preferential treatment by selecting  the post-graduates  first who secured more than  the  qualifying marks  in the open category and since sufficient number  of post-graduates were available, no graduate was selected.  In the  case of reserved categories also post-graduates to  the extent they were available were selected and in the case  of non-availability of post-graduates, graduates were  selected for appointment to the posts in question. The  validity of the recruitment and the procedure  followed by the A.P.P.S.C. were challenged before the Andhra  Pradesh Administrative  Tribunal.   The Tribunal  upon  hearing  the application,  took a view contrary to the one taken  by  the learned  single Judge of the High Court in W.P. No. 2568  of 1982 and quashed the select list. In appeal to this court, HELD:     1.01.  Rule  4 prescribes  the  qualification  for appointment  to certain posts including the post  of  Deputy Executive  Engineer  by  direct  recruitment,  promotion  or transfer.  Note  forms part of the said rule. 436 Before  the insertion of the second part to Note I  by  GOMs No.1 180 of 1983, the instructions contained in the Memo  of 13th October, 1978 provided guidance in the matter of  grant of  preference to post-graduates for entry by  promotion  to

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the  post of Deputy Executive Engineer.  The subject  clause of  the memo undoubtedly refers to preference to be  granted to post-graduates in the matter of promotion and the use  of the  expression  ’seniority’  in  paragraph  2  thereof   is undoubtedly indicative of the fact that its application  was limited  to  laying down guidelines for application  of  the preference clause found in Note 1 to the rule in the  matter of promotion. [446F-H] 1.02.     ’There  can  be  no question  of  arranging  post- graduates  according  to seniority where  they  are  seeking appointment  by  direct recruitment In that  case  the  list would  have  to be prepared on the basis of  merit  and  not seniority.  Therefore, the use of the expression ’promotion’ in  the  subject clause and the  expression  ’seniority’  in paragraph  2 of the memo is indicative of the fact that  the instructions   concerned  appointment  by   promotion.    In paragraph  2 it is said that candidates  with  post-graduate qualification  will  be  arranged  in  the  order  of  their seniority and they shall be considered first and only  after such  a list is considered, the case of  ordinary  graduates shall be considered and selection made on merit and ability. Paragraph 3 then says that the expression ’preference  shall be  given’  used  in Note 1 means that  other  things  being equal, holders of post-graduate qualifications will be given preference  and  after  that the claims  of  less  qualified candidates would be considered for appointment.  The use  of the word after in both the paragraphs is significant and  is indicative  of the manner in which the preference clause  is to be worked out. [447C-E] 1.03.It is indeed true that under paragraph 2 of the memo it was  directed  that ’the list of  eligible  candidates  with post-graduation qualification shall be first considered..... and  only after such a list is considered’; others  will  be considered,  albeit on the basis of merit and ability.   The language  of this paragraph leaves no manner of  doubt  that the  turn of ordinary graduates for consideration came  only after the list of eligible post-graduates was settled.   The order  in  which the cases of  post-graduates  and  ordinary graduates   will  be  considered  is  made  clear  in   this paragraph.   But  paragraph  3 of the  Memo  says  that  the expression  ’preference shall be given’ occurring in Note  1 would  mean  that, other things e.g. passing  of  prescribed tests, maintaining merit, suitability, fitness, etc.,  being equal, 437 preference  shall  be  given  to  holders  of  post-graduate qualifications.   The  latter part of  this  paragraph  adds ’after  giving  the  said preference’, the  claims  of  less qualified  candidates would be considered.  This would  that after a comparative study is undertaken those post-graduates who are found entitled to preference would be first promoted and  thereafter cases of less qualified candidates would  be considered. [447H, 448A-C] 1.04. In the present case also the zone of consideration was narrowed  by eliminating candidates who did not  succeed  In the  qualifying test and out of those who succeeded  in  the qualifying   test  and  secured  the  minimum  marks   after interview  were considered and thereafter In the process  of selection the preference rule was applied by first  choosing the  postgraduates  and thereafter the graduates.   We  have already  pointed out above that classification on the  basis of higher educational qualification with a view to achieving improvement  in administrative performance is not  abhorrent to  Articles 14/16 of the Constitution.  We are,  therefore, of  the  opinion that the view taken by the  learned  Single

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Judge  of  the High Court on a true  interpretation  of  the relevant  rule in the context of the  historical  background was  a  plausible view and should commend acceptance  as  it would advance the cause of efficiency in a highly  technical service. [453D-E] Md.   Usman & Ors. v. State of Andhra Pradesh, [1971]  Supp. SCR  549; Roshan Lal Tandon v. Union of India [1969]  1  SCR 185;  State of J & K v. Trilok Nath Koosa, [1974] 1 SCC  19; Md.   Sujat  Ali v. Union of India, [1975] 3  SCC  76;  Roop Chand v. DDA, [1989] Supp.  1 SCC 116; V Markandeya v. State of  A.P.,  [1989]  3 SCC 191;  Sanatan  Gauda  v.  Berhampur University,  [1990]  3  SCC 231 ; G.K Ajjappa  v.  State  of Mysore & Ors., (1969) (1) Labour & Industrial Cases 364  and Gujarat  State Sales Tax Non-Gazetted Employees  Association v.  The  State  of Gujarat and another, (1977)  1  SLR  452, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1710 of 1990 etc. etc. From  the  Judgment  and  Order  dated  31.12.1987  of   the Hyderabad High Court in R.P. No. 1551/1986. K.   Madhaya  Reddy and Guntur Prabhakar for the  appellants in C.A. No. 1710/90. 438 H.N. Salve, S.K Gambhir and Vivek Gambhir for the appellants in C.A. Nos. 1011-1024/92. M.K  Ramamurthi,  MA.  Krishnamoorthy,  Ms.  C.  Ramamurthy, T.V.S.N.  Chari and J.M. Khanna for the respondents in  C.A. Nos. 10111024/92. M.K  Ramamurthy Ms. C. Ramamurthy, M.A.  Krishnamoorthy  and M.A. Chinnaswamy for the petitioner in W.P. No. 96/92. H.N.  Salve, S.K. Gambhir, Vivek Gambhir and T.V.S.N.  Chari for the respondents in W.P. No. 96/92. H.S. Gururaja Rao and Y.P. Rao for the appellant in C.A. No. 720/88. A.   Subba Rao, A.D.N. Rao, TVSN Chari and K. Ram Kumar  for the respondents in C.A. No. 720/88. T.V.S.N. Chari for the appellant in C.A. No. 72V88. H.S.  Gururaja  Rao,  A.  Subba Rao and  Y.P.  Rao  for  the respondents in C.A.No. 721/88. S.   Padmanabhan Ms. Anjani N. Shridhar and K Ram Kumar  for the appellants in C.A. No. 1260/90. T.V.S.N. Chari for the respondents. The Judgment of the Court was delivered by AHMADI, J. By an Advertisement No. 6/88 dated 1st  December, 1988  the  Andhra Pradesh Public  Service,  Commission  (for short  ’PSC’) invited applications for 60 vacancies  in  the cadre  of Deputy Executive Engineers in different  services: (a)  R&B  Engineering  Service, (b) P.H.  &  M.  Engineering Service,  (c)  Engineering  Service and  (d)  Panchayat  Raj Engineering Service in the common scale of Rs. 1980-3500  to be filled by direct recruitment.  These vacancies were shown in  the  advertisement at Code G-1 under  the  head  Central Recruitment.   The educational and other qualifications  for the  posts  in  question  were set out  to  be  Bachelor  of Engineering  degree  (Highways, Civil or  Mechanical)  of  a recopied  University for (a) and (d) services, a  degree  in Civil or Mechanical En- 439 gineering  of a recognised University for (b) service and  a degree in Bachelor of Engineering.  Civil or Mechanical of a recognised  University  for  (c) service.   Insofar  as  (b)

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category  is  concerned, it was  mentioned  that  preference shall  be given to persons possessing five years  experience in  Irrigation  or Execution of Water  Supply  and  Drainage Scheme.  In respect of posts in (a) & (c) categories, it was further  mentioned  that post-graduate qualification  of  an Indian  or  Foreign  University  shall  be  treated  as  ’an additional  qualification and preference shall be  given  to such  candidates.  Para 7 of the advertisement  stated  that the  selection  will  be  made  on  the  basis  of   written examination  to be followed by oral test/interview  for  the post in Code G-I.  The scheme of examination was detailed in Annexure   6  of the advertisement.  Pursuant  to  the  said advertisement both graduates and post-graduates applied  for the  posts in question and were subjected to a written  test and  those who secured the qualifying marks were called  for oral  test/interviews.  Some candidates who did  not  secure the   qualifying  marks  and  were  not  called   for   oral test/interviews  filed  O.A.  Nos.  1736  to  1739  of  1990 contending that they ought to have been called and the total number of marks secured both at the written examination  and oral test should have been taken into consideration for  the purpose  of  determining  the successful  candidates  to  be empanelled for appointment to the posts in question. The PSC on an interpretation of the relevant rule as  placed by  the  High Court of Andhra Pradesh in Writ  Petition  No. 2568 of 1982 decided by Waghray, J. on March 14, 1986  first selected   post-graduate   engineers   for   the   available vacancies under open competition and since sufficient number of  post-graduates were available, no graduate was  selected for  the  posts in question.  In the  category  of  reserved seats  for backward classes, scheduled castes and  scheduled tribes,  post-graduates  to the extent they  were  available were  selected and in the case of non-availability of  post- graduates,  graduates were selected for appointment  to  the posts  in question.  It would at this stage be  relevant  to reproduce the rule in question               "Rule 4 : Qualifications  No person shall  be               eligible  for appointment to the category  and               by the method mentioned in columns (1) and (2)               of the following table unless he possesses the               qualifications prescribed in the corresponding               entry in column (3) thereof 440 Category           Method of    Qualifications Dy. Executive      Direct(i) Engineer           Recruitment (i)Must not have completed 28 years of  age on first date of the July of the     year  in which the recruitment  is  made provided that those possessing post graduate  qualifications shall be  allowed age concession to the extent of 2 years : (ii)  Must  possess the B.E. Degree(Civil or  Mechl.)  of  a University in India, established or incorporated by/or under a  Central  Act,  Provincial  Act, or a  State  Act,  or  an institution  recopied  by  the  Central  University   Grants commission or an equivalent qualification.               Note  1  Post-Graduate  qualification  of   an               Indian  or  of  Foreign  University  shall  be               treated  as  an additional  qualification  and               preference  shall be given to such  candidates               in the matter of direct recruitment, promotion               and  recruitment  by transfer to the  post  of               Deputy Executive Engineers.               The extent to which a post-graduate has to  be               given preference in the matter of promotion to               the  post  of  Deputy  Executive  Engineer  is

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             indicated below:               9th  vacancy  in  9  vacancies  intended   for               appointment  of Assistant Executive  Engineers               and  Compressed  Diploma  Holders  (DCES)   as               Deputy  Executive Engineers shall however,  be               earmarked    for    post-graduate    Assistant               Executive Engineers. (A  similar rule  Rule 5  is to be found for the  post  of Deputy Executive Engineers in Roads & Buildings  Engineering Service Rules, 1987). Subsequently,  the  State Government by a  Memo  dated  13th October,  1978 issued instructions to the Chief Engineer  in the matter of promotion 441 to  the  category of Assistant Engineers  (Deputy  Executive Engineers) from the category of Junior Engineers  (Assistant Executive Engineers).  The said memo reads as under :               "The,   attention   of  the   Chief   Engineer               (General)  is invited to the  reference  cited               and he is informed that under note (1) of Rule               4  of  A.P.E.S. Rules, it is  laid  down  that               post-graduate  qualification of an  Indian  or               Foreign  University  shall be  treated  as  an               additional qualification and preference  shall               be  given to each candidate in the  matter  of               direct recruitment, promotion and  recruitment               by transfer to the post of Asstt.  Engineer.               2.    The  above  rule is not  conditional  or               limited.  Hence, for any particular year,  the               list of eligible candidates with post-graduate               qualification shall be first considered in the               order of their seniority and only after such a               list  is  considered  the  cases  of  ordinary               graduates  shall be considered  and  selection               has  to  be  made on the basis  of  merit  and               ability.               3.    The  expression  ’preference.  shall  be               given’  occurring in the said rule would  mean               that,   other  things  such  as   passing   of               prescribed    tests,    maintaining     merit,               suitability,   fitness   etc.,   being   equal               preference shall be given, at every  selection               or  preparation  of panel for  appointment  as               Asstt.   Engineers  to the  holders  of  post-               graduate qualifications, and after giving  the               said  preference the claims of less  qualified               candidates   who   are   also   eligible   for               appointment   would   be   considered.    Such               preference is not conditional or limited." On  an  interpretation of the relevant rule  read  with  the above memorandum, the PSC following the decision of the High Court in Writ Petition No’ 2568 of 1982 (supra) treated  the post-graduates  as  a  class  and  gave  them   preferential treatment by selecting those post-graduates who secured more than  the  qualifying marks in the open category  and  since they  were  available in sufficient number,  graduates  were kept  out of selection.  In the case of reserved  categories also  post-graduates to the extent they were  available  and had secured the qualifying marks for empnelment were 442 selected  and  only where sufficient number  of  such  post- graduates  were  not available graduates  were  selected  in accordance  with  merit and placed below them in  the  list. This  procedure  was  followed by the PSC  in  view  of  the guidelines  laid down in the judgment of the High  Court  in

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the  aforesaid  writ petition.  In that  case,  the  learned Single Judge in the High Court held as under :               "So  far as the interpretation of Rule  4  and               its  implementation contained in the  note  to               Rule  4. 1 am clearly of the opinion that  the               post-graduate  will have to be preferred as  a               class.  This is also supported by the memo  of               the Government and the decision of the Supreme               Court and the High Court.  So long as the rule               of  preference  stands.   I  do  not  see  any               justification  for watering down of  the  said               Rule  in the way in which the  Commission  has               done  by reducing it only to the  cases  where               there is equivalence of marks between a  post-               graduate and graduate.  The very object of the               preferential  treatment  is defeated  by  this               procedure." Writ Appeal No. 475 of 1987 was dismissed on August 25, 1987 on the ground that the Single Judge’s order was implemented. The  State  Government’s S.L.P. No. 13035 of 1987  was  also dismissed on November 26, 1990. The Supreme Court’s decision relied on by the learned Single Judge  is the case of Md.  Usman & Ors. v. State  of  Andhra Pradesh, [1971] Supp.  SCR 549.  Following the above  dictum of  the  learned  Single Judge of the High  Court  when  the selections were made pursuant to the Advertisement No. 6/88, the  PSC followed the procedure indicated by the High  Court and prepared the Select List.  This was once again put  into issue  by  the graduates who were left out of  selection  in several   applications   filed   in   the   Andhra   Pradesh Administrative Tribunal at Hyderabad.  A two-member Bench of the  Tribunal  heard this group of applications and  by  its judgment  and  order dated September 19,  1991  quashed  the Select  List  prepared by the PSC on the following  line  of reasoning :               According  to  us that rule  only  meant  that               other  things being equal and the  performance               of a candidate possessing higher qualification               and the candidate possessing min-               443               imum  qualification  is  equal,  a   candidate               possessing  higher  qualification  may   claim               preference   but   not  in  case   where   the               performance of a candidate possessing  minimum               qualification is better than the candidate who               possessed  the higher qualification.   If  the               interpretation  given  by the  learned  Single               Judge  of the High Court is to be followed  by               the   Public  Service  Commission,  the   very               purpose of conducting written and oral test to               assess  the relative merit and suitability  of               the  candidates for the purpose  of  preparing               the  Select List would be defeated.   In  this               view  of  the  matter,  we  differ  with   the               conclusions  reached  by  the  learned  Single               Judge  of the High Court in W.P. No.  1568/82.               Therefore,  the  Select List prepared  by  the               first  respondent treating the  post-graduates               as  separate class, irrespective of the  marks               secured by the post-graduates and graduates in               written  and  oral tests, is contrary  to  the               rules  and ultra vires Articles 14 and  16  of               the Constitution of India." It will appear from the above facts that the PSC had earlier interpreted  and applied the relevant rule as opined by  the

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Tribunal  but the same was struck down by the High Court  in Writ Petition No. 2568 of 1982 holding that such a procedure would defeat the very object of preferential treatment.  The learned Single Judge directed that the post-graduates should be  treated  as  a  preferred class and  so  long  as  post- graduates who had secured the minimum qualifying marks  were available,  they  were  to  given  preference  to  graduates notwithstanding  the fact that the latter may  have  secured higher  percentage of marks in the written as well  as  oral test/interview.  Only when qualified post-graduates are  not available could the names of the graduates be entered in the Select  List  on the basis of their inter-se  merit.   Since this decision of the learned Single Judge of the High  Court was  holding  the field at the relevant point of  time  when selections were made pursuant to the Advertisement No. 6/88, the  PSC  followed  the procedure outlined  by  the  learned Single  Judge  and  notwithstanding the  fact  that  certain graduates had secured higher percentage of marks than  post- graduates,  the  latter were selected in preference  to  the former  and only in the reserved category  where  sufficient number  of post-graduates were not available graduates  were empanelled  on the basis of their inter-se merit and  placed below the post-graduates.  Once again the 444 PSC  got entangled in litigation and, as pointed out  above, the  tribunal by the impugned judgment took a view  contrary to  the  one taken by the learned Single Judge of  the  High Court  and upset the Select List.  So far as the  applicants of  O.A.  Nos.  1736  to 1739 of  1990  were  concerned  the tribunal upheld the decision of the PSC not to call them for oral   test/interview  since  they  had  not   secured   the qualifying marks in the written test.  Their contention that notwithstanding their having failed to secure the qualifying marks in the written test, they should have been called  for oral test/interviews and thereafter the total marks  secured both in the written test and the oral test should have  been compared  with  the total marks secured by others,  did  not find  favour  with the tribunal.  The  tribunal,  therefore, dismissed  their  applications with no order  as  to  costs. They too have approached this Court in appeal. It  is clear from the above that two views are canvassed  on the  true  interpretation of the relevant  rule.   The  view urged by the post-graduates is that in implementing the rule of  preference in the matter of direct recruitment  the  PSC should   first  exhaust  candidates   having   post-graduate qualifications  if they have secured the minimum  qualifying marks  and if they are not available in  sufficient  number, then  and then only, graduates should be selected on  merits from  among  those who have secure  the  minimum  qualifying marks  and  above.  Learned counsel  for  the  postgraduates submitted  that if the rule is not so implemented  the  very purpose  of  granting preference to post-graduates  will  be lost  as it will virtually boil down to a  ridiculously  low figure  and  the object of cadre-strengthening will  not  be achieved.   This view found favour with the  learned  Single Judge of the High Court in Writ Petition No. 2568 of 1982 as mentioned earlier.  The rival view canvassed by the  learned counsel  for  the  non-preference  candidates  is  that  the preference rule can come into play only where two candidates have  secured  equal  marks  in  which  case  the  candidate possessing  post-gaduate qualification will be preferred  if the other candidate does not possess that qualification  but not otherwise, that is, not if a graduate has secured higher number  of  marks than the post-graduate.   In  other  words everything  being  equal between two candidates,  the  scale

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will  tilt  in  favour  of  a  post-graduate  if  the  other candidate is merely a graduate.  This view has found  favour with  the tribunal which is impugned before us.  For us  the question  is which of the two views is correct.  We  may  at this stage notice one further contention urged on behalf  of the  appellants and that is that it was not legally  correct for the Tribunal to have upset the law already 445 settled  by  the  High Court which the PSC  had  applied  in finalising  the selection since it was a  decision  rendered much  before (i) the Central Administrative  Tribunals  Act, 1985, came into force and (ii) the Tribunal was  constituted thereunder.   Alternatively  it was urged that even  if  two views  were reasonably possible on the construction  of  the relevant  rule,  the  Tribunal should  not  have  upset  the selection  made  on the construction earlier placed  by  the High Court. Before we come to grips with the question regarding the true meaning  and import of the rule, it may be  advantageous  to analyse the rule on its plain language.  The opening fine of the  rule  says  that  no  person  shall  be  eligible   for appointment to the post in question unless he possesses  the qualification  prescribed therefor.  For the post of  Deputy Executive   Engineers  for  direct  recruitment  the   first requirement  is that he must not have completed 28 years  of age as on 1st July of the concerned year of recruitment  but in the case of post-graduates a concession to the extent  of two   years   is  allowed.   Insofar  as   the   educational qualification  is  concerned he must possess a  B.E.  degree (Civil  or  Mechanical)  of  an  Indian  University  or   an institution  recognised by the Central UGC or an  equivalent qualification.   So  the minimum  educational  qualification prescribed  for  the post of Deputy Executive  Engineer  for direct  recruitment  is graduation.  Thus far  there  is  no difficulty.   We now move on to Note 1. As is  evident  this note  is  in  two parts.  The first  part  says  that  post- graduate  qualification  shall be treated as  an  additional qualification   and  preference  shall  be  given  to   such candidates.   This  part applies to all the three  modes  of recruitment.  The second part indicates the extent to  which a  post-graduate is to be given preference in the matter  of promotion  to  the post of Deputy  Executive  Engineer.   It earmarks the 9th vacancy in 9 vacancies for a  post-graduate Assistant Executive Engineer (redesignated Junior Engineer). It  may be borne in mind that this second part was added  by GOMs  No. 180 dated 29th April, 1983 in exercise  of  powers conferred by the proviso to Article 309 of the Constitution. It will be seen from the above that while the first part  of the note requires post-graduate qualification to be  treated as  an  additional qualification and  candidates  possessing such   qualification   have  to  be   given   a   preference irrespective of the mode of entry, the second part qualifies or explains the same insofar as it considers promotion.  The second  part  therefore, applies to entry by  promotion  and does  not apply to entry by direct recruitment or  transfer. This seems to be the purport of Note 1 on its plain reading. 446 We  may  now turn to the instructions  issued  through  Memo dated 13th October, 1978 which is in three paragraphs.   The first  paragraph  merely states the purport of Note  1.  The second paragraph states that the list of eligible candidates with  post-graduate qualification shall be first  considered in  the  order  of  their seniority and  only  after  it  is considered,  the  cases  of  ordinary  graduates  shall   be considered.  The selection has of course, to be made on  the

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basis of merit and ability.  Then comes the third  paragraph which  seeks  to  explain the phrase  ’preference  shall  be given’  to  mean  that  other things  (such  as  passing  of prescribed  test, maintaining merit,  suitability,  fitness, etc.)  being equal preference shall be given to  holders  of post-graduate   qualifications,   and  after   giving   such preference  the claim of less qualified candidates would  be considered.  it  may at this be mentioned that  the  subject clause  of  the  Memo  dated 13th  October,  1978  has  some relevance and may be reproduced :               "Sub:-  Public  Services   A.P.  Engineering               Service  Promotion to the category  of  Asstt.               Engineers   from   Jr.   Engineers   category-               preference to Post Graduates-Reg." From  the use of the expression ’promotion’ in  the  subject clause  and  ,seniority’ in paragraph 2 of the memo  it  was argued  that  the  said instructions  applied  to  cases  of promotion  only  and  had no application  when  it  came  to filling  up  of the posts by direct  recruitment.   We  will immediately deal with the said submission. The  Andhra  Pradesh Engineering Service Rules,  1966  (’the Rules’  hereafter) came to be enacted in exercise of  powers conferred by the proviso to Article 309 of the Constitution. Rule 4 thereof prescribes the qualification for  appointment to  certain  posts including the post  of  Deputy  Executive Engineer by direct recruitment, promotion or transfer.  Note I forms part of the said rule.  Before the insertion of  the second  part  to  note  1  by GOMs  No.  180  of  1983,  the instructions  contained  in the Memo of 13th  October,  1978 provided  guidance in the matter of grant of  preference  to post-graduate  for entry by promotion to the post of  Deputy Executive   Engineer.   The  subject  clause  of  the   Memo undoubtedly  refers  to preference to be  granted  to  post- graduates  in  the matter of promotion and the  use  of  the expression ’seniority’ in paragraph 2 thereof is undoubtedly indicative  of the fact that its application was limited  to laying  down  guidelines for application of  the  preference clause found in Note 1 to the 447 rule in the matter of promotion.  Paragraph 2 thereof  while stating  that rule 4 is not conditional or limited  proceeds to  add that for any particular year, the list  of  eligible candidates   with  post-graduate  qualification   shall   be considered in the order of their ’seniority’ and only  after such  list  is considered the cases  of  ordinary  graduates shall be considered and selection will be made on the  basis of merit and ability.  The question of seniority among post- graduates can arise only in regard to candidates who are  in service  and who are to be considered for promotion  to  the next  higher post.  There can be no question,  of  arranging post-graduates according to seniority where they are seeking appointment  by direct recruitment.  In that case  the  list would  have  to be prepared on the basis of  merit  and  not seniority.  Therefore, the use of the expression ’promotion’ in  the  subject clause and the  expression  ’seniority’  in paragraph  2 of the memo is indicative of the fact that  the instructions   concerned  appointment  by   promotion.    In paragraph  2 it is said that candidates  with  post-graduate qualification  will  be  arranged  in  the  order  of  their seniority and they shall be considered first and only  after such  a list is considered, the case of  ordinary  graduates shall be considered and selection made on merit and ability. Paragraph 3 then says that the expression ’preference  shall be  given’  used  in Note I means that  other  things  being equal, holders of post-graduate qualifications will be given

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preference and after that the claims of less qualified  can- didates would be considered for appointment.  The use of the word  after  in both the paragraphs is  significant  and  is indicative  of the manner in which the preference clause  is to  be  worked out.  After the amendment of Note  1  by  the introduction  of the second part earmarking the slot of  9th vacancy  for  post-graduates, the mode of  implementing  the preference  in  the  matter  of  appointment  by   promotion underwent a change rendering the memo of 13th October,  1978 otiose.   But  it  can  still be availed of  as  an  aid  to construction  of  Note  1 insofar as it  concerns  grant  of preference in the matter of direct recruitment.  Except  for this limited use to which the Memo can be put, we are agreed that  it  related to grant of preference  at  the  promotion stage only and has since become otiose. It  was emphasised on behalf of the post-graduates that  the use  of the expression after in paragraphs 2 and 3 makes  it clear  beyond any manner of doubt that the intention of  the authorities  was to treat post-graduates as a class  and  to consider  them  first  and only  thereafter  could  ordinary graduates aspire to seek entry into the higher post.  It  is indeed  true  that  under paragraph 2 of  the  memo  it  was directed that the fist of eligible 448 candidates  with  post-graduation  qualification.  shall  be first  considered.........  and only after such  a  list  is considered  the  cases  of  ordinary  candidates  shall   be considered;  albeit on the basis of merit and ability.   The language  of this paragraph leaves no manner of  doubt  that the  turn of ordinary graduates for consideration came  only after the ha of oh post-graduates was settled.  The order in which  the  cases of post-graduates and  ordinary  graduates will  be  considered is made clear in this  paragraph.   But paragraph 3 of the Memo says that the expression ’preference shall  be given’ occurring in Note 1 would mean  that  other things e.g. passing of prescribed tests, maintaining  merit, suitability, fitness, etc., being equal, preference shall be given  to  holders of  post-graduates  qualifications.   The latter  part of this paragraph adds ’after giving  the  said preference’,  the claims of less qualified candidates  would be  considered.   This would mean that after  a  comparative study  is  undertaken  those  postgraduates  who  are  found entitled   to  preference  would  be  first   promoted   and thereafter  cases  of  less qualified  candidates  would  be considered.   The  combined reading of paragraphs  2  and  3 gives  the  impression that cases  of  post-graduates  found entitled  to promotion had to be first considered  and  only after  their absorption would it be permissible to  consider the  claims  of  ordinary  graduates  i.e.  less   qualified candidates.   This  method  of grant of  preference  in  the matter  of  promotion was changed by GOMs No.  180  of  1983 probably   because  it  was  causing  avoidable   hardships. Similar  changes  were introduced in  the  rules  concerning other engineering services also.  By this amendment  instead of  granting preference to post-graduates in the  matter  of promotion  under  the aforesaid Memo, the 9th vacancy  in  9 vacancies was earmarked for a post-graduate.  We fail to see how  such a provision granting preference to  post-graduates on  the basis of their higher educational  qualification  be said  to conflict. with the equality clause when  the  post- graduates constitute a separate class.  More of it later. The interpretation on Note 1 has to be placed in  background of  the  said  historical  fact.  It is  at  the  same  time necessary to remember that so far as the PSC is concerned it placed  the interpretation now placed by the Tribunal  under

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the  impugned order till it was disapproved by  the  learned Single Judge of the High Court in Writ Petition No. 2568/82. In  doing so the High Court placed reliance on the  decision of this Court in Md. Usman’s case (supra).  That was a  case in which both UDCs and LDCs were placed in one class for the purpose  of  recruitment as Grade II Sub- Regiwam  The  rule was, therefore challenged as violative of Article 449 14 on the ground that unequals were treated as equals.   The second  question was whether the recruitments were  made  in accordance with the relevant rule.  The High Court  answered the latter contention in the affirmative but struck down the rule on the first ground.  In appeal this Court reversed the High Court’s decision holding that there was no violation of Article  14  in clubbing UDCs and LDCs for  the  purpose  of recruitment to Grade IT  Sub-Registrars. Now the rule  that prescribed the qualification for the said post also provided that  preference shall be given to persons who, in  addition to the prescribed qualification, possess a degree in law  of University in the state or an equivalent qualification.   In that case these persons who were entitled to preference were considered   separately   and  recruited  first   and   only thereafter  others were recruited, as in the  present  case. This Court found this method for recruitment by transfer  to ’the  most reasonable one’.  Those observations support  the contention put-forward by the post-graduates and were relied upon  by  the  learned Single Judge in  the  High  Court  in support of the view taken by him.  The Tribunal has referred to  this  decision  but  has not  expressed  itself  on  the applicability or otherwise of the said view. The  matter may be looked at from another  view-point.   The word  preference’ as understood in ordinary parlance  means to  preferring or choosing as more desirable,  favouring  or conferring  a  prior right.  What then is  the  purpose  and object  sought  to  be  achieved by  the  insertion  of  the preference  clause  in  the rule?  There is  no  doubt  that preference  was sought to be granted under Note 1  to  post- graduates  in  the larger, interest of  the  administration. How  would the interest. of the administration be served  by granting  preference to post-graduates?  It is obvious  that it  was  thought  that on account  of  their  higher  mental equipment  the  quality of performance that the  State  will receive from highly qualified engineers would be better  and of  a  high order.  In other words the State  considered  it necessary   to   strengthen  the  engineering   service   by recruiting postgraduates to the extent available so that the State   may   benefit   from   their   higher    educational qualifications  and  better performance.  If  this  was  the objective  surely  it  would not be  realised  unless  post- graduates  are  treated as a class and given  preference  on block over the graduates.  Since sufficient number of  post- graduates may not be available from the feeder channels  and even  if  available cannot be promoted out of  turn  without causing  heart burns, it was thought desirable to resort  to such large scale recruitment directly from the open  market. The underlying idea of the Memo dated 450 13th  October,  1978 was the same but  certain  difficulties were  felt  in resorting to enforcement  of  the  preference clause  at  the promotion stage and that is why  the  second part  came to be inserted in Note I but no  such  difficulty would  be  experienced in strengthening  the  cadre  through direct recruitment.  But then it was said what was the  need for   the  PSC  to  hold  the  written  test   by   inviting applications  from  graduates and subjecting them  to  test?

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That  was  for the reason that there was no  guarantee  that sufficient  number  of  post-graduates  would  qualify   for selection and appointment.  But if the preference rule  were to  be  implemented as held by the Tribunal it  would  apply only  where the post-graduate and graduate  candidates  have secured   the  same  number  of  marks.   If  the  rule   so implemented   is  carried  to  its  logical  end  it   would ultimately resolve a tie only at the last rung of the ladder because  ties at higher levels would be resolved by a  post- graduate  being followed by a graduate in the  select  list. The  question of elimination would really arise at the  last placement  in  the list and hence the real  purpose  of  the preference rule would not be served.  That is why this Court in  Md.   Usman’s case (supra) approved of  this  method  of recruitment as most reasonable.  There is nothing  arbitrary or unreasonable in the employer preferring a candidate  with higher  qualification for service.  It is well settled by  a catenation of decisions that classification on the basis  of higher   educational   qualification   to   achieve   higher administrative   efficiency   is   permissible   under   our constitutional  scheme.  See Roshan Lal Tandon v.  Union  of India,  [1968]  1  SCR 185; State of J & K  v.  Trilok  Nath Koosa,  [1974] 1 SCC 19; Md.  Sujat Ali v. Union  of  India, [1975] 3 SCC 76; Roop Chand v. DDA, [1989] Supp.  1 SCC 116; V. Markandaya v. State of A.P., [1989] 3 SCC 191 and Sanatan Gauda  v.  Berhampur  University,  [1990]  3  SCC  23.   We, therefore,  do not agree that treating post-graduates  as  a class and giving them preference in this manner is violative of  Articles 14/16 of the Constitution.  We also do not  see any  vice in the relevant rule and in Note 1 as  amended  in 1983. Before  we part we may refer to two decisions to  which  our attention  was  invited.   The first  is  a  Division  Bench decision of the Mysore High Court in the case G.K Ajjappa v. State  of Mysore & Ors., [1969] 1 Labour & Industrial  cases 364.   That  was  a  case in which  the  PSC  had  issued  a notification  for  selecting four persons for  the  post  of Superintendent  of Fisheries and the petitioner had  applied for the post in response thereto.  After the interviews were taken,   respondents   Nos.  3  to  6  were   selected   for appointment.   Respondents Nos. 3, 4 and 5 belonged  to  the backward 451 classes  whereas respondent No. 6 belonged to the  Scheduled Castes.   Respondent No. 5 though belonging to the  backward classes was selected on the basis of merit.  The  petitioner contended  that he possessed higher qualification  and  was, therefore,  entitled to preference under the  relevant  rule providing for ’preference being given to persons  possessing higher qualification’.  The contention was that so far as he was concerned, there was no question of interviewing him and in  any  case since he possessed  higher  qualifications  he ought to have been preferred in the matter of selection  and appointment  to  the post in question.  Now  the  method  of recruitment set out in Sub-rule (3) of Rule 4 of the  Mysore Public  Service  Commission (Functions) Rules, 1957  was  as under :               "Consider  all applications received and  when               necessary interview such candidates as fulfill               the   prescribed   conditions  and   whom   it               considers most suitable for appointment." The  High Court, therefore, came to the conclusion that  the preference  rule  could not exclude an  interview  expressly authorised by Rule 4(3) extracted above.  If the appointment had  to  be  made  by selection,  and  the  ’most  suitable’

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candidate had to be chooses for appointment, someone had  to make  the selection and the PSC was designated for the  same and  was charged with the duty to make the selection of  the most  suitable  candidate or candidates  and,  therefore,  a person with higher qualifications could not elbow out a more suitable  person with lower qualifications for  appointment. While  conceding  that  higher  academic  qualification   is generally a dependable index of superior merit, which endows in its turn suitability in many spheres, the High Court held that the selection had to be made strictly in terms of  Rule 4(3)  and,  therefore,  the quest had to  be  for  the  most suitable candidate and the superior qualification could turn the  scale only if suitability was found in  equal  measure. It  was for this reason that the High Court  concluded  that the determining criteria is not the higher qualification but suitability  in the opinion of the PSC, the quest being  for the most suitable.  Higher qualification by itself would not earn a selection unless it stood reinforced and supplemented by suitability in other respects.  It is, therefore, obvious that the decision turned on the language of Rule 4(3) of the Function Rules. The second decision to which our attention was invited is  a Judgment 452 of  a  learned  Single Judge of the Gujarat  High  Court  in Gujarat  State Sales Tax Non-Gazeued Employees’  Association ’v.   The State ’of Gujarat and another, (1977) 1  SLR  452. In that case 120 posts of Sales Tax Inspectors were required to  be filled in by direct selection.  An advertisement  was issued  in  the Newspaper and as many as  15,000  candidates applied in response thereto.  This necessitated screening of the candidates at the old.  It was found that more than 1000 applicants  were  holding first class degrees  in  different faculties of recognised Universities; 580 of them were first class Commerce graduates. 101 first class Arts graduates and about  500 first class Science graduates.  Having regard  to the  number of vacancies the field of choice was  restricted to first class graduates only and it was decided not to call for  interview  a  second  class  or  third  class  graduate including graduates having commerce degree with  Accountancy as  a subject.  It was this decision which was put in  issue before  the  learned  Single Judge by  candidates  who  were eliminated   at  the  threshold  from  consideration.    The relevant  rule provided that the appointment to the Post  of Sales  Tax  Inspectors shall be made either  (a)  by  direct selection or (b) by promotion.  Insofar as direct  selection was  concerned, the educational qualification  required  was stated  to  be  a degree of a  recognised  University.   The proviso laid down as under               "Provided that preference shall be given to  a               candidate  who possesses the degree  of  B.Com               with Accountancy or Chartered Accountants,               or possesses a qualification recognised to  be               equivalent to such examination by the Govt. of               Gujarat.’               In the context of this preference rule it  was               observed in para 7 of the Judgment as under :               "To  hold  that  the rule  of  preference  was               enacted  to  give to Commerce  graduates  with               Accountancy  or  to  candidates  having  other               prescribed    qualifications    an    absolute               preference   over  the  graduates   of   other               faculties  would be to denude the  substantive               provision of much of its force and effect  and               to  covert the rule of preference into a  rule

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             of reservation thereby obliterating altogether               the  right  of  other  candidates   possessing               degree  of recognised Universities in  various               other  faculties  to  be  considered  for  the               post." 453 It  is true that notwithstanding the preference rule  it  is always open to the recruiting agency to prescribe a  minimum eligibility  qualification  with a view to  demarcating  and narrowing  down  the  field  of  choice  with  the  ultimate objective    of    permitting   candidates    with    higher qualifications to enter the zone of consideration.  It  was, therefore,   held   that  screening  a  candidate   out   of consideration  at the threshold of the process of  selection is  neither  illegal nor unconstitutional  if  a  legitimate field demarcating the choice by reference to some  rationale formula is carved out.  Thus the challenge based on Articles 14/16 of the Constitution was repelled.  We are in agreement with  the  ratio  of this decision and  that  is  enough  to negative the claim of candidates who had preferred OA.  Nos. 1736  to 1739 of 1990 who were not called for  interview  on their failing to secure the minimum qualifying marks in  the written test. In  the  present  case also the zone  of  consideration  was narrowed  by eliminating candidates who did not  succeed  in the  qualifying test and out of those who succeeded  in  the qualifying   test  and  secured  the  minimum  marks   after interview  were considered and thereafter in the process  of selection the preference rule was applied by first  choosing the  postgraduates  and thereafter the graduates.   We  have already  pointed out above that classification on the  basis of higher educational qualification with a view to achieving improvement  in administrative performance is not  abhorrent to  Articles 14/16 of the Constitution.  We are,  therefore, of  the  opinion that the view taken by the  learned  Single Judge  of  the High Court on a true  interpretation  of  the relevant  rule in the context of the  historical  background was  a  plausible view and should commend acceptance  as  it would advance the cause of efficiency in a highly  technical service.   We, therefore, think that even if two views  were possible, the Tribunal ought not to have unsettled the legal position  settled earlier by the High Court with which  even this  Court refused to interfere in SLP.  For the  foregoing reasons we do not approve of the view subsequently taken  by the Tribunal. Since we have on interpretation of the relevant rule in  the context  of  the  background provided by the  Memo  of  13th October,  1978 approved the learned Single Judge’s view,  we do not consider it necessary to examine the contention  that since the judgment of the learned Single Judge was prior  to the  enactment of the Central Administrative  Tribunals  Act and the constitution of the Tribunal, the latter should have felt bound by the High Court’s view.  We express no  opinion on the said point. 454 in  the result Civil Appeals Nos. 720 and 721 of 1988,  1260 and  1710 of 1990 and 1011 to 1024 of 1992 are  allowed  and the  impugned  orders of the Tribunal are set  aside.   Writ Petition  No. 96 of 1992 is dismissed.  Any action taken  in pursuance  of  interim  orders  of  this  court  during  the pendency  of the aforesaid cases will be regularised in  the light  of our judgment but if it entails refund of  payments already  made, the same shall not be effected and  shall  be waived.   Heaving regard to the facts and  circumstances  of the  case.  We make no order as to costs throughout  in  all

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the matters. B.V.B.D   CA Nos. 720 & 721/88, 1260 & 1710/90 and 1011-           1024/92 allowed.           WP No. 96/92 dismissed. 455