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CASE NO.: Appeal (civil)  5757-5759 of 2002

PETITIONER: State of U.P. & Anr.

RESPONDENT: Om Prakash & Ors.

DATE OF JUDGMENT: 21/07/2006

BENCH: H.K. SEMA & A.K. MATHUR

JUDGMENT: J U D G M E N T

H.K.SEMA,J WITH C.A.No.5761-5763/02,C.A.No.5765-5766/02,C.A.No.5760/02,  C.A.No.5764/02, C.A.No 3078 of 2006 @ SLP  (c)No.24710  of 2002, C.A.No 3097 of 2006 @ SLP(C)No.24189/02,  C.A.No.7013/04, C.A.No.174/05, C.A.No.275/05,  C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05,  C.A.No.1191/05, C.A.No.1192/05, C.A.No.1193/05,  C.A.No.2734/05 and  C.A.No.7533 of 2005.         

               Delay condoned in SLP (c) Nos.24710 and 24189 of  2002 and leave granted.                  I.A.Nos.3-4 of 2001 for impleadment and I.A.Nos.7- 8 of 2004 for intervention in C.A.No.5765-5766 of 2002 are  rejected.                  These bunch of appeals raise a common question of  fact and law and as such they are being disposed of by this  common judgment.  For the sake of brevity we are taking the  facts from Civil Appeal No.5757-5759 of 2002.                 The facts are cumbersome.  Avoiding prolixity few  facts are recited.   The whole controversy revolves around the  selection made by the Uttar Pradesh Public Service  Commission (hereinafter referred to as the UPPSC) for the  Medical Officers of Homeopathy.                   Pursuant to the advertisement dated 22.3.1986 and  a corrigendum dated 14.11.1987, 390 posts were advertised to  be filled up by the Homeopathic Medical Officers through  UPPSC.   Alongwith others respondents also applied for the  posts for which the interview was held on 23.10.1990.  The  appointments were to be made on the basis of oral interview  and also the marks to be awarded on the qualifications of each  candidate.                 It is stated that the respondents possess the  Bachelor Degree of Homeopathic Medicine and Surgery     (B.H.M.S ). It is also stated that they have completed five years  course including one-year compulsory routine internship in  Government Hospitals and Public Health Centres from  Homeopathic Medical College affiliated with the Agra  University in the year 1985.                     To appreciate the real controversy in perspective, it  is necessary to notice the requisite qualification mentioned in  the advertisement as per the requirement of Rule 8 of the  Uttar Pradesh Homeopathic Medical Service Rule, 1990 ( in  short Rules).   "8. Academic qualification:-       A candidate for direct recruitment to the  service must possess:-

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I.  a recognized degree in Homeopathic, the  duration     of study of which is not less than  five years according to its syllabus of course.

                                 OR

a recognized Diploma in Homeopathy the  duration of study of which is not less than four  years according to its syllabus of course.

       Provided that preference will be given to  degree holders.                                     (emphasis supplied)

II.     The applicant should be duly registered  with the Homeopathic Medical Board, Uttar  Pradesh.            

               It will be noticed from the above quoted rules that in  addition to the requisite qualification a proviso has been added  "preference will be given to degree holders".

               The real controversy starts from the proviso that  "preference will be given to degree holders".

               For total seats of 390, 716 degree holders applied,  out of which 565 were found eligible for interview and out of  them 109 have been recommended and appointed.  The total  number of diploma holders who had applied for the posts were  4239, out of which 1989 were called for interview and 302  were recommended.  The diploma holders in general category  who had secured 49% marks were called for interview whereas  in the case of backward class candidates those who had  secured 48.7% marks were called for interview.                 In the batch of writ petitions the main judgment  was delivered by the Division Bench of the High Court in Civil  Misc.Writ Petition No.10175 of 1994 disposed of on 19.7.1996.   The judgment of the Division Bench dated 19.7.1996 passed  in Civil Misc. Writ Petition has not been assailed by the  appellants and therefore it has attained finality.   What has  been appealed against in this bunch of appeals is the  subsequent order of the High Court following the decision  dated 19.7.1996 rendered in Civil Misc.Writ Petition No.10175  and batches of 1994.         Undisputedly, the respondents were degree holders  with requisite qualification as prescribed in the advertisement.   The apple of discord centers around the proviso.  The  respondents/writ petitioners contended before the High Court  that such preference has not been given to the degree holders  and they were clubbed together with the diploma holders and  considered as such by the Commission.  The respondents  challenged the entire selection in the writ petition as ultra vires  the qualifications prescribed in the advertisement.  The select  list has also been challenged on the ground of arbitrariness as  according to the respondents/writ petitioners the preference  clause was totally ignored.  It was contended before the High  Court by the appellants that the ratio for filling up 390 total  seats was in the ratio of 1 to 8.  In other words, for filling up  the 390 total seats, 2554 candidates were called for interview,  out of which 1989 were diploma holders and 565 degree  holders were found eligible.                  The High Court after repelling the contention of the

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appellants has interpreted the preference clause as under:-   "If we read the preferential clause, giving the  ordinary literal meaning, the Degree holders  were to be preferred to Diploma holders, as  has been explained in the advertisement itself,  i.e. the Diploma holders will be considered only  when the Degree holders are not available in  requisite number.  These are the words used in  the clarification clause given in the  advertisement.  It is plain and clear from those  words that in case where Degree holders are  not available in requisite number, only then,  Diploma holders are to be considered.   Therefore, there was no rationality in clubbing  them together while considering the preference  to be given to the Degree holders."  

               The High Court rejected the consistent contention of  the appellants that the writ petitioners/respondents herein  were also called for interview and they were not selected for  the posts.                  However, the High Court on the aforesaid reasoning  of interpretation of preference clause as prescribed in the  advertisement has came to the following conclusion: "Considering the facts and circumstances of  the case, we have no hesitation in holding that  the Commission acted in most arbitrary and  unreasonable manner in making selection for  the post of Homeopathic Medical Officer.  It is  not expected from such a constitutional body,  like the public Service Commission to act in  such a casual manner while considering the  public employment.  We would have had no  hesitation in quashing the entire selection  made by the Commission but considering the  public interest and also bearing in mind that  the persons already selected have been  appointed and are working on their posts as  Homeopathic Medical Officers for more than  two years and they could not be made party in  these writ petitions, although a few of them  have intervened by filing applications and have  been heard, and further that fresh selection  will unreasonably delay causing inconvenience  to the public in general, we refrain from doing  so in the larger interest.  Therefore, on  conclusion of the hearing, we sought  information from the learned Standing Counsel  as to how many posts of Homeopathic Medical  Officers are still vacant.  The learned Standing  Counsel filed an affidavit on behalf of the State  annexing therewith a letter dated 20.5.1996,  disclosing that 50 posts of Homeopathic  Medical Officers are still lying vacant, out of  which 15 posts are earmarked for the female  candidates.  Therefore, considering all these  circumstances, we are of the view that it would  be equitable in the facts of the case to issue  direction to the Commission to forward the  names of all the petitioners to the State  Government for appointment on the vacant  post of Homeopathic Medical Officers."    

               The interpretation of the preference clause given by

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the High Court runs into the teeth of the decisions rendered  by this Court in a catena of cases.                   This Court has consistently held that when  selection is made on the basis of merit assessed through the  competitive examination and interview, preference to  additional qualification would mean other things being  qualitatively and quantitatively equal, those having additional  qualification would be preferred.  It does not mean en bloc  preference irrespective of inter se merit and suitability.                    In Secy.(Health) Deptt. Of Health & F.W.    vs.     Dr.Anita Puri (1996) 6 SCC 282, this Court held that  preferential qualification do not as of right entitle to selection.  In that case the advertisement inviting applications for the  post of Dental Officers prescribed B.D.S. as the minimum  qualification but stipulated preference for higher dental  qualification.  This Court held at scc p.285 as under:- "Admittedly, in the advertisement which was  published calling for applications from the  candidates for the posts of Dental Officer it  was clearly stipulated that the minimum  qualification for the post is B.D.S. It was also  stipulated that preference should he given for  higher dental qualification. There is also no  dispute that M.D.S. is higher qualification  than the minimum qualification required for  the post and the Respondent No. 1 was having  that degree. The question then arises is  whether a person holding a M.D.S.  qualification is entitled to be selected and  appointed as of right by virtue of the aforesaid  advertisement conferring preference for higher  qualification? The answer to the aforesaid  question must be in the negative. When an  advertisement stipulates a particular  qualification as the minimum qualification for  the post and further stipulates that preference  should be given for higher qualification, the  only meaning it conveys is that some  additional weightage has to be given to the  higher qualified candidates. But by no stretch  of imagination it can be construed to mean  that a higher qualified person automatically is  entitled to be selected and appointed. In  adjudging the suitability of a person for the  post, the expert body like Public Service  Commission in the absence of any statutory  criteria has the discretion of evolving its mode  of evaluation of merit and selection of the  candidate. The competence and merit of a  candidate is adjudged not on the basis of the  qualification he possesses but also taking into  account the other necessary factors like career  of the candidate throughout his educational  curriculum, experience in any field in which  the selection is going to be held; his general  aptitude for the job to be ascertained in course  of interview, extra-curriculum activities like  sports and other allied subjects personality of  the candidate as assessed in the interview and  all other germane factors which the expert  body evolves for assessing the suitability of the  candidate for the post for which the selection  is going to be held.  In this view of the matter,  the High Court in our considered opinion was  wholly in error in holding that a M.D.S.

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qualified person like Respondent No. 1 was  entitled to be selected and appointed when the  Government indicated in the advertisement  that higher qualification person would get  some preference. The said conclusion of the  High Court, therefore, is wholly unsustainable  and must be reversed".

               This Court again considered the same question in  Secretary, A.P.Public Service Commission vs.      Y.V.V.R.Srinivasulu (2003) 5 SCC 341 and held at scc p.348  as under:- "The word "preference" in our view is capable  of different shades of meaning taking colour  from the context, purpose and object of its use  under the scheme of things envisaged. Hence,  it is to be construed not in an isolated or  detached manner, ascribing a meaning of  universal import, for all contingencies capable  of an invariable application. The procedure for  selection in the case involve, a qualifying test,  a written examination and oral test or  interview and the final list of selection has to  be on the basis of the marks obtained in them.  The suitability and all round merit, if had to be  adjudged in that manner only what  justification could there be for overriding all  these merely because, a particular candidate is  in possession of an additional qualification on  the basis of which, a preference has also been  envisaged. The rules do not provide for  separate classification of those candidates or  apply different norms of selection for them.  The ’preference’ envisaged in the rules, in our  view, under the scheme of things and  contextually also cannot mean, an absolute en  bloc preference akin to reservation or separate  and distinct method of selection for them  alone. A mere rule of preference meant to give  weightage to the additional qualification  cannot be enforced as a rule of reservation or  rule of complete precedence. Such a  construction would not only undermine the  scheme of selection envisaged through the  Public Service Commission, on the basis of  merit performance but also would work great  hardship and injustice to those who possess  the required minimum educational  qualification with which they are entitled to  compete with those possessing additional  qualification too, and demonstrate their  superiority merit wise and their suitability for  the post. It is not to be viewed as a preferential  right conferred even for taking up their claims  for consideration. On the other hand, the  preference envisaged has to be given only  when the claims of all candidates who are  eligible are taken for consideration and when  anyone or more of them are found equally  positioned by using the additional qualification  as a tilting factor, in their favour vis-a-vis  others in the matter of actual selection".

               In the instant case, the requisite academic  qualification for the post of homeopathy as prescribed in the

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advertisement was a recognized degree in Homeopathy or a  recognized diploma in Homeopathy.  A proviso has been added  that preference will be given to degree holders.  This would  mean that a recognized diploma in homeopathy prescribed in  the advertisement is also a required minimum educational  qualification with which they are entitled to compete with  those candidates possessing the degree.  The word preference  would mean that when the claims of all candidates who are  eligible and who possess the requisite educational qualification  prescribed in the advertisement are taken for consideration  and when one or more of them are found equally positioned,  then only the additional qualification may be taken as a tilting  factor, in favour of candidates vis-‘-vis others in the merit list  prepared by the Commission.  But preference does not mean  en bloc preference irrespective of inter se merit and suitability.                  That apart this Court has consistently held that  inclusion of candidate’s name in merit list does not confer any  indefeasible right to be appointed. [ See Shankarsan Dash   v     Union of India, AIR 1991 SC 1612 and Union Territory of  Chandigarh  v  Dilbagh Singh, (1993) 1 SCC 154 ]                     In the facts aforesaid we are clearly of the view that  the High Court has misdirected itself by issuing such  directions despite the fact that the respondents were not  selected by the Commission.                  Counsel for the respondents herein would contend  that since the order of the High Court dated 19.7.1996 passed  in Civil Misc. Writ Petition No.10175 of 1994 and batches has  now attained finality, the subsequent order of the High Court  following the same decision assailed in the present appeals  must also be dismissed.  We are unable to accept this  contention.  Adhering to such contention would amount  allowing the perpetuation of illegality.                     We may also dispose of one of the arguments of the  counsel for the appellants.  Counsel contended that the  judgment of the High Court dated 19.7.1996 passed in Civil  Misc. Writ Petition No.10175 of 1994 which judgment was  followed in a subsequent order has been assailed in this batch  of appeals and, therefore, the judgment dated 19.7.1996 is  clearly illegal and the same should also be set aside.  We are  unable to agree with this submission for more than one  reason.  Firstly, the judgment dated 19.7.1996 has not been  appealed against and it has now been implemented and has  attained finality.  Secondly, the writ petitioners in Civil Misc.  Writ Petition No.10175 of 1994 and batches thereof which  were allowed by the High Court in its judgment dated  19.7.1996 are not before us.                  However, the subsequent orders following the  judgment by the High Court dated 19.7.1996, which has been  assailed in these bunch of Civil Appeals, are quashed and set  aside.   Accordingly, Civil Appeal Nos.5757-5759/02, 5761- 5763/02, 5765-5766/02, 5764/02, C.A.No\005\005\005\005         \005\005\005of   2006 @ SLP ( c ) No.24710/02, C.A.No\005\005\005of 2006  @ SLP (c) No.24189/02, C.A.No.174/05, C.A.No.275/05,  C.A.No.276/05, C.A.No.278/05, C.A.No.1190/05,  C.A.No.1191/05, C.A.No.1192/05, C.A.No.1193/05,  C.A.No.2734/05 and C.A.No.7533 of 2005 filed by the State of  U.P. and Uttar Pradesh Public Service Commission are  allowed.         Civil Appeal Nos.7013 of 2004 and 5760 of 2002 are  dismissed.  Parties are asked to bear their own costs.